Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perez v. First Fleet, Inc.

United States District Court, D. Nevada

November 1, 2019

CONNIE PEREZ, ET AL., Plaintiffs,
v.
FIRST FLEET, INC., ET AL., Defendants.

          ORDER

          DANIEL J. ALBREGTS UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is Plaintiffs' Motion for Extension of Time for Service of Summons and Complaint on Defendant Dean Eakins and for Service by Publication (ECF No. 26), filed on October 24, 2019. The Motion requests that Plaintiffs be allowed to serve Defendant Dean Eakins by publication. In doing so, Plaintiffs argue that such service is needed because (1) they have identified four possible addresses, (2) attempted service on two of the addresses including the best possible match 12 times, and (3) have no other way to determine the whereabouts of Eakins. (ECF No. 26, 3-4).

         Plaintiffs request a ninety (90) day extension of time to serve under Fed.R.Civ.P. 4(m), which expired on October 28, 2019. Rule 4m states:

If a defendant is not served within 120 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.

         Courts have broad discretion to extend time for service under Rule 4(m). Efaw v. Williams, 473 F.3d 1038, 1041(9th Cir.2003). The 120-day period for service contained in Rule 4(m) “operates not as an outer limit subject to reduction, but as an irreducible allowance.” Henderson v. United States, 517 U.S. 654, 661 (1996). “On its face, Rule 4(m) does not tie the hands of the district court after the 120-day period has expired. Rather, Rule 4(m) explicitly permits a district court to grant an extension of time to serve the complaint after that 120-day period.” Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir.2003). Moreover, the Advisory Committee Notes to Rule 4(m) state that the rule “explicitly provides that the court shall allow additional time if there is good cause for the plaintiff's failure to effect service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the consequences of an application of [Rule 4(m)] even if there is no good cause shown.” See Fed.R.Civ.P. 4(m), Advisory Committee Notes, 1993 Amendments. Generally, “good cause” is equated with diligence. See Wright & Miller, Federal Practice and Procedure: Civil 3d § 1337.

         The Court has little difficulty finding good cause for the requested extension. The exhibits attached from Plaintiffs' process server (ECF No. 26, 10-15) provide a detailed breakdown of the many efforts that have been made to effectuate service in this matter. Thus, the request for ninety (90) additional days to complete service is granted.

         Plaintiffs' also request service by publication. Fed.R.Civ.P. 4(e)(1) addresses service by publication in federal actions. Rule 4(e)(1) states that an individual may be served by following state law for serving summons in an action brought in courts of general jurisdictions in the state where the district court is located, or where service is made. Nevada Rules of Civil Procedure 4.4(c) and 4.4(c) subsections (1), (2), (3), and (4) govern service by publication as an alternative method of service. The current version of Nevada Rule reads in pertinent part as follows:

4.4(c) Service by Publication. If a party demonstrates that the service methods provided in Rules 4.2, 4.3, and 4.4(a) and (b) are impracticable, the court may, upon motion and without notice to the person being served, direct that service to be made by publication.
4.4(c)(1) Conditions . Service by publication may only be ordered when the defendant (A) cannot, after due diligence, be found;
(B) by concealment seeks to avoid service of the summons and complaint; or
(C) is an absent or unknown person in an action involving real or person property under Rule 4.4(c)(3).
4.4(c)(2) Motion Seeking Publication. A motion seeking an order for service by publication must:
(A) through pleadings or other evidence establish that:
(i) a cause of action exists against the defendant who is to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.