United States District Court, D. Nevada
M. Navarro, District Judge
before the Court is Defendant Shade Tree's
(“Defendant's”) Motion to Dismiss, (ECF No.
7). Plaintiff Robert White (“Plaintiff”) filed a
Response, (ECF No. 14), and Defendant filed a Reply, (ECF No.
16). Also pending before the Court is Plaintiff's Motion
for Extension of Time to Serve Defendants, (ECF No. 15). For
the reasons discussed below, the Court
DENIES Defendant's Motion to Dismiss and
GRANTS nunc pro tunc
Plaintiff's Motion for Extension of Time.
case arises from events beginning on March 5, 2017, when
police officers with the Las Vegas Police Department arrived
at Plaintiff's residence in response to calls about
domestic violence between Plaintiff and Andria Joseph.
(Compl. ¶¶ 5-28, ECF No. 1). Upon arrival, the
police noted minor injuries and created a report detailing a
battery offense. (Id. 28- 60). Plaintiff alleges
that he was eventually incarcerated for domestic violence,
though Joseph was not. Additionally, based on the arrest and
imprisonment, Defendant allegedly terminated its employment
with Plaintiff. (Id. ¶¶ 61-62, 109-112).
March 6, 2019, Plaintiff filed his Complaint against
Defendant, Las Vegas Metropolitan Police Department
(“LVMPD”), Sherriff Joseph Lombardo, several
officers with the LVMPD, and Andria Joseph's estate.
Specific to Defendant, Plaintiff alleges that it wrongfully
terminated him as an employee and failed to properly
investigate the truth of the domestic violence charges,
arrest, and incarceration. (Id. ¶¶
Court issued a summons to Plaintiff when he filed his
Complaint in order for him to serve it upon all Defendants
within 90 days. On June 5, 2019, the Court notified Plaintiff
that “this action may be dismissed without prejudice .
. . unless proof of service is filed with the clerk by
07/05/2019.” (Not. Intent to Dismiss, ECF No. 5).
Plaintiff then filed proof of service as to Defendant on July
3, 2019. (Mot. Dismiss 2:18-19, ECF No. 7). However, in light
of Plaintiff's failure to serve Defendant within the
90-day window under Federal Rule of Civil Procedure 4(m),
Defendant filed the instant Motion seeking dismissal of
Plaintiff's Complaint. (Id. 2:19-23).
Thereafter, on August 22, 2019, Plaintiff filed his Response
to Defendant's Motion and a Counter-Motion for an
extension of time to serve all Defendants, (ECF No. 15).
have broad discretion to extend time for service under
Federal Rule of Civil Procedure 4(m). Efaw v.
Williams, 473 F.3d 1038, 1041 (9th Cir. 2003). The
Supreme Court has stated that the 90-day period for service
contained in FRCP 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). Moreover, if the plaintiff shows good cause for the
failure to effect service within the 90-day window,
“the court must extend the time for service for an
appropriate period.” Fed.R.Civ.P. 4(m).
moves for the Court to dismiss it as a party in
Plaintiff's Complaint due to Plaintiff's failure to
serve it within 90 days of the Complaint's filing. (Mot.
Dismiss 3:2-11). Defendant adds that Plaintiff has not shown
good cause for his failure to comply with FRCP 4(m)'s
requirements, and thus an extension need not be awarded.
(Id.). In response, Plaintiff contends that he
mistakenly thought Nevada state rules governed service of
process, which would provide 120 days for service. (Resp.
3:12-15). Accordingly, Plaintiff seeks an extension of FRCP
4(m)'s deadline so that Plaintiff can be given 120 days
to serve Defendant. An extension of 120 days would mean that
Plaintiff's service of Defendant on July 3, 2019, is
timely. (Mot. Extension 5:14-16, ECF No. 15).
Court finds that an extension of time for Plaintiff to serve
Defendant with the Complaint is appropriate. Though Defendant
argues that Plaintiff has not shown good cause for an
extension, courts in this District recognize that FRCP 4(m)
“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.” Fisher v.
TheVegasPackage.com, Inc., No. 2:19-cv-01613-JAD-VCF,
2019 WL 6828295, at *1 (D. Nev. Dec. 12, 2019) (quoting
Fed.R.Civ.P. 4(m), Advisory Committee Notes, 1993
Amendments). Here, Plaintiff complied with the Court's
initial warning about dismissal if service did not occur by
July 5, 2019. (Not. Intent to Dismiss, ECF No. 5). The
ultimate delay in service was therefore minimal and far
different than circumstances in other cases cited by
Defendant where untimely service warranted dismissal. (Mot.
Dismiss 3:17-28) (citing Wilhelm v. Yott, No.
3:09-cv-488-RCJ-RAM, 2010 WL 1416898, at *2 (D. Nev. Mar. 30,
2010), where the plaintiff completed service 422 days after
filing the complaint.). Also, Defendant does not demonstrate
sufficient prejudice for dismissal; and the prejudice to
Plaintiff would be severe.
the Court declines to dismiss Plaintiff's Complaint based
on a failure to serve Defendant within 90 days of the
Complaint's filing. Moreover, the Court will extend the
service requirement nunc pro tunc for 120 days from
the Complaint's filing date of March 6, 2019. Plaintiff
should recognize, however, that his pro se status
alone will not serve as an excuse for additional failures to
follow procedural rules. Cf. Jacobsen v. Filler, 790
F.2d 1362, 1364 (9th Cir. 1986) (stating that pro se
litigants in an ordinary civil case should not be treated
more favorably than attorneys of record in reference to
HEREBY ORDERED that Defendant's Motion to Dismiss, ...