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Bey v. State

United States District Court, D. Nevada

September 30, 2019

OMARI NAEEM BEY, Plaintiffs,
v.
STATE OF NEVADA, et al., Defendants.

          ORDER

         Presently before the court is defendant Quality Medical Imaging of Nevada LLC.'s (“Quality”) motion to dismiss. (ECF No. 23). Plaintiff Omari Naeem Bey (“plaintiff”) filed a response (ECF No. 26), to which Quality replied (ECF No. 29).

         Also before the court is State of Nevada ex rel. Nevada Department of Corrections, Director Greg Cox, Warden Dwight Neven, Correctional Officer Franco's (“state defendants”) motion to dismiss. (ECF No. 25). Plaintiff filed a response (ECF No. 30), to which state defendants replied (ECF No. 31).

         I. Background

         As relevant here, on February 5, 2019, plaintiff brought this action, alleging (1) a violation of his Eighth Amendment rights, (2) Monell liability, (3) sexual molestation as the tort of assault, (4) sexual molestation as the tort of battery, (5) sexual molestation as the tort of intentional infliction of emotional distress, (6) battery, during his incarceration at High Desert State Prison.

         After multiple attempts, plaintiff served Quality on May 7, 2019. Plaintiffs attempted to serve state defendants through certified mail, which receipt was acknowledged on April 16, 2019. Plaintiff has not otherwise attempted service on state defendants. Now, both Quality and state defendants move to dismiss plaintiff's complaint for failure to comply with Federal Rule of Civil Procedure 4(m).

         II. Legal Standard

         Rule 4(m) provides the deadline for service as follows:

“If a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.”

         Federal Rule of Civil Procedure 12(b)(5) allows a party to file a motion to dismiss based on a violation of 4(m). Courts have broad “discretion to extend time for service under Rule 4(m), ” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007), and may extend time for service even after the Rule 4(m) deadline has expired, Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). In addition, the Federal Rules of Civil Procedure “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1.

         III. Discussion

         Pending before the court is Quality's and state defendant's motion to dismiss the plaintiff's complaint for failure to comply with Rule 4(m). Quality asserts that the complaint must be dismissed because the plaintiff missed his service deadline without good cause. State defendants assert the complaint should be dismissed because plaintiff missed the service deadline by serving the government through mail in violation of federal and Nevada rules. The court will address each motion in turn.

         A. Quality's motion to dismiss

         Both parties agree that the Rule 4(m) deadline for plaintiff to properly serve Quality was May 6, 2019. Both parties also agree that plaintiff missed this deadline by serving Quality on May 7, 2019. Thus, the only question before the court is whether plaintiff missing this deadline is excusable under the law.

         The Ninth Circuit has explained that Rule 4(m) “provides two avenues for relief” for parties who miss their service deadline. Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). The first avenue is mandatory: upon a showing of good cause, a district court must extend the time for service. Id. The second avenue is discretionary: if the plaintiff fails to establish good cause, a district court ...


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