Opinion
CV-22-01087-PHX-DWL (DMF)
11-09-2022
John Randall Ottley, et al., Plaintiffs, v. Arizona Game and Fish Commission, et al., Defendants.
HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE, UNITED STATES MAGISTRATE JUDGE
This matter is on referral to the undersigned for pretrial proceedings pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 5 at 2)
Plaintiffs John Randall Ottley, Anthony Covell, and James Virgil Harvey initiated this action on June 27, 2022, including paying the filing fee. (Doc. 1) On July 19, 2022, this Court ordered Plaintiffs to serve or obtain a waiver of service from each Defendant within 90 days of the filing of the Complaint or within 60 days of the Court's Order, whichever was later. (Doc. 5 at 1-2) Plaintiffs did not serve or obtain a waiver of service from each Defendant by September 26, 2022, which was the deadline to do so.
On September 29, 2022, this Court ordered that no later than October 31, 2022, Plaintiffs must file proof of service of process on Defendants or show cause in writing as to why unserved Defendants should not be dismissed without prejudice for failure to serve. (Doc. 9 at 2)
On November 3, 2022, Plaintiff Covell was dismissed for failure to prosecute and failure to comply with LRCiv 83.3(d), due to his failure to notify the Court of his change of address. (Docs. 11, 12)
Plaintiffs have not filed proof of service regarding any of the Defendants and have not shown cause in writing as to why the unserved Defendants should not be dismissed for failure to serve; the time to do so has expired. For the reasons set forth below, it is recommended that the remaining claims in this matter be dismissed due to Plaintiffs' failure to timely serve Defendants and failure to comply with Court Orders.
I. PROCEDURAL HISTORY AND POSTURE
On June 27, 2022, Plaintiffs Ottley, Covell, and Harvey (collectively, “Plaintiffs”) filed a pro se Complaint under 42 U.S.C. § 1983 and paid the filing fee. (Doc. 1) Each Plaintiff signed the Complaint. (Id. at 11) In their Complaint, Plaintiffs name two Defendants, Arizona Game and Fish Commission and Tyler Raspillar (collectively, “Defendants”), and allege six counts for relief regarding events that occurred between May 2018 and June 2022. (Id. at 1, 3-10)
In Count One, Plaintiff Ottley alleges that agents of Defendant Arizona Game and Fish Commission violated Plaintiff Ottley's due process rights and “rights of equal access to justices[.]” (Id. at 4-6) In Count Two, Plaintiff Ottley alleges that agents of Defendant Arizona Game and Fish Commission violated his security and privacy under the Fourteenth Amendment and 42 U.S.C. § 1983. (Id. at 7) In Count Three, Plaintiff Ottley alleges that defendant Raspillar conspired with other agents and unlawfully seized Plaintiff Ottley's property in violation of 42 U.S.C. §§ 1985 and 1986 and 18 U.S.C. § 241. (Id. at 7-8) In Count Four, Plaintiff Harvey alleges that Defendant Arizona Game and Fish interfered with Plaintiff Harvey's business and research in violation of the First, Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments, 42 U.S.C. §§ 1983 and 1986, and Article 2, Section 8 of the Arizona Constitution. (Id. at 8) In Count Five, Plaintiff Ottley alleges that Defendant Arizona Game and Fish Commission deprived Plaintiff Ottley of his rights under state law, federal law, and the United States Constitution. (Id. at 8-10) In Count Six, Plaintiff Ottley alleges that agents of Defendant Arizona Game and Fish Commission deprived Plaintiff Ottley of his right to open carry under the Second Amendment, First Amendment, and Fourteenth Amendment. (Id. at 10)
Also on June 27, 2022, Plaintiffs submitted proposed summonses. (Doc. 2) On the same date, this Court sent to each Plaintiff a Notice of Assignment (Doc. 3) and a Notice of Self-Represented Litigant. (Doc. 4) On July 18, 2022, a mailed copy of each the Court's Notice of Assignment and Notice to Self-Represented Litigant were returned as undeliverable as to Plaintiff Covell. (Doc. 7) The documents were not returned as to any other Plaintiff.
On July 19, 2022, the Court issued a Service Order stating that:
(1) Plaintiffs must either serve each Defendant in compliance with the applicable rules of the Federal Rules of Civil Procedure, and the Local Rules of this Court, or seek a waiver of service from each Defendant.
(2) If Plaintiffs do not obtain a waiver of service of the summons or complete service of the Summons and Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed.R.Civ.P. 4(m); LRCiv 16.2(b)(2)(B)(ii).(Doc. 5 at 1-2) Therefore, the deadline for service was September 26, 2022.
In the Court's Service Order, the Court instructed the Clerk of Court to issue Plaintiffs' proposed summonses (Doc. 2) if the summonses had been properly completed. (Doc. 5 at 2) On July 19, 2022, Plaintiffs' proposed summonses were issued pursuant to the Court's Order. (Doc. 6) On July 26, 2022, a mailed copy of the Court's Service Order was returned as undeliverable as to Plaintiff Covell. (Doc. 8) The Service Order was not returned as to any other Plaintiff.
Because Plaintiffs had not filed any evidence of service or waiver of service from any Defendant by September 26, 2022, the Court issued an Order to Show Cause on September 29, 2022, recounting that:
Plaintiffs are responsible for service of the Complaint. See Rule 4, Federal Rules of Civil Procedure. Fed.R.Civ.P. 4(m) provides:
(m) Time Limit for Service. 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. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).See also Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).
(Doc. 9 at 2) The Court ordered that:
no later than October 31, 2022, Plaintiffs shall either (1) file with the Court proof of service of process on Defendants; or (2) otherwise show cause in writing filed with the Court (titled “Response to Order to Show Cause”) as to why unserved Defendants should not be dismissed without prejudice for failure to timely complete service. Failure to comply with this Order may result in dismissal of this action.(Id.)
On October 6, 2022, a mailed copy of the Court's Order to Show Cause was returned as undeliverable as to Plaintiff Covell. (Doc. 10) On November 3, 2022, Plaintiff Covell was dismissed without prejudice for failure to prosecute and failure to comply with LRCiv 83.3(d), due to his failure to notify the Court of his change of address. (Docs. 11, 12) The Order to Show Cause was not returned as to any other Plaintiff.
Plaintiffs did not file any proof of service upon any of the Defendants or otherwise respond to the Court's Order to Show Cause by October 31, 2022.
II. FAILURE TO SERVE
The first issue before the Court is whether to grant the remaining Plaintiffs (Plaintiffs Ottley and Harvey) an extension of time to serve Defendants pursuant to Fed.R.Civ.P. 4(m) or whether to dismiss unserved Defendants without prejudice for failure to serve. A federal court does not have “personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed.R.Civ.P. 4.” Travelers Cas. & Sur. Co. of America v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (internal quotation marks and citations omitted). Rule 4(m) provides that:
[i]f 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 must 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. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).Fed. R. Civ. P. 4(m). A “plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” Fed.R.Civ.P. 4(c)(1).
There are “two avenues for relief” from the time limit in Rule 4(m). Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). The first, which is “mandatory,” requires a district court to “extend time for service upon a showing of good cause.” Id. (citing In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001)). Under the second, which is discretionary, “if good cause is not established, the district court may extend time for service upon a showing of excusable neglect.” Id. Although the Ninth Circuit has not “articulate[d] a specific test that a court must apply in exercising its discretion under Rule 4(m),” Sheehan, 253 F.3d at 513, a Court may consider factors such as “a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007).
A. The Record Does Not Establish Good Cause for a Mandatory Extension of Time
“At a minimum, good cause means excusable neglect[,]” but three factors may be considered to determine if there is good cause for an extension of time to effectuate service: “(a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.” Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991) (applying former Rule 4(j) establishing a 120-day time limit for service).
Here, Plaintiffs Ottley and Harvey have not shown excusable neglect, and nothing in the record suggests that Defendants have received actual notice of Plaintiffs' lawsuit. Defendants have not been served with process, have not made an appearance before the Court, and have not contacted the Court in any manner. Accordingly, neither excusable neglect nor factor (a) supports a finding of good cause.
As for factor (b), the loss of “a quick victory” for Defendants is not prejudicial. Bateman v. United States Postal Service, 231 F.3d 1220, 1225 (9th Cir. 2000). However, extending time for service would require Defendants to litigate events that occurred over four and a half years ago, which risks prejudice. See, e.g., Cammilletti v. Shinn, 2022 WL 4227369, at *6 (D. Ariz. Aug. 22, 2022) (risk of prejudice where events underlying claims occurred over two years prior) (report and recommendation adopted at 2022 WL 4182350 (D. Ariz. Sept. 13, 2022)); Ibrm Ibn Albinsiio Greagor v. Arpaio, 2016 WL 6272523, at *3 (D. Ariz. Sept. 20, 2016) (risk of prejudice where events underlying claims occurred three years prior).
As for factor (c), “[a] dismissal for untimely service is required to be a dismissal without prejudice]” thereby allowing a “plaintiff to refile the complaint and effect timely service.” United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 773 n.2 (9th Cir. 2004). If a plaintiff cannot refile a complaint due to a statute of limitations, however, dismissal would severely prejudice a plaintiff. See, e.g., Trueman v. Johnson, 2011 WL 6721327, at *4 (D. Ariz. Dec. 21, 2011). Plaintiffs initiated their suit under 42 U.S.C. § 1983. (Doc. 1-1 at 1) Because “Section 1983 does not include its own statute of limitations ... federal courts apply the statute of limitations governing personal injury claims in the forum state.” Finkle v. Ryan, 174 F.Supp.3d 1174, 1186 (D. Ariz. 2016). In Arizona, where Plaintiffs allege the events in the Complaint took place, the statute of limitations “for personal injury claims is two years.” Id. Plaintiffs allege that the events in the Complaint occurred on May 18, 2018, through June 2022. (Doc. 1 at 3-10) If the unserved defendants, and thus the remaining claims, are dismissed, then Plaintiffs would be barred from pursuing claims regarding events that occurred more than two years prior to any refiling. Here, it may be that the statute of limitations has already expired regarding some events alleged in the Complaint.
Plaintiffs also listed 18 U.S.C. § 242 as a cause of action on the cover sheet of the Complaint (Doc. 1-1 at 1), but Section 242 does not provide a private, civil cause of action. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).
Although the statute of limitations is a relevant factor in determining whether good cause for an extension exists, it is not dispositive. See Martin v. City of Long Beach, 246 F.3d 674, 674 (9th Cir. 2000) (expired statute of limitations “does not compel the district court” to extend time for service for good cause); Modee v. Corizon Health, 2020 WL 555409, at *3 (D. Ariz. Jan. 9, 2020) (report and recommendation adopted by Modee v. Corizon Health, 2020 WL 554386, at *1 (D. Ariz. Feb. 4, 2020)) (expired statute of limitations did not excuse failure to timely serve or to make plans to do so). Plaintiffs have not provided the Court with any plans they have made to effectuate service of either Defendant. Plaintiffs have made no filing in this matter since the filing of the Complaint and proposed summonses in June 2022. The Court has no confidence that an extension of time will result in service of either Defendant.
Accordingly, the Court finds that good cause for an extension of time to serve does not exist on the record before the Court. Thus, an extension of time to serve is not mandatory.
B. A Discretionary Extension of Time is Not Warranted
Where good cause does not exist, the Court may grant a discretionary extension of time for Plaintiffs Ottley and Harvey to serve Defendants with the Complaint. The Court has “broad” but not limitless “discretion to extend time for service under Rule 4(m).” Efaw, 473 F.3d at 1041. In deciding whether to extend the time for service, “a district court may consider factors ‘like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.'” Id. (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)). These factors are discussed above. Importantly, Plaintiffs have not set forth any efforts made to serve Defendants, and Plaintiffs have not provided the Court with any plans they have made to effectuate service of either Defendant. Thus, excusable neglect has not been shown.
Despite the Court's Orders regarding service and warning Plaintiffs of the risk of dismissal of this action, Plaintiffs have not made any filings in this matter since the filing of the Complaint and proposed summonses in June 2022. Therefore, the Court has no confidence that an extension of time will result in service of any Defendant.
On the record before the Court at this time, Plaintiffs Ottley and Harvey are not entitled to a discretionary extension of time to serve Defendants.
C. Dismissal Without Prejudice of Defendants is Appropriate
Because Plaintiffs Ottley and Harvey have not timely served any Defendant, Plaintiffs have provided no plans to effectuate service of Defendants, and the record does not establish adequate cause to grant Plaintiffs Ottley and Harvey an extension of time for service, it is recommended that the unserved Defendants be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m) for failure to timely effectuate service.
III. FAILURE TO COMPLY WITH COURT ORDERS
The second issue before the Court is whether to dismiss this matter for Plaintiffs Ottley and Harvey's failure to comply with Court Orders.
In the absence of a motion to dismiss from a party, the United States Supreme Court has recognized that a district court has the inherent power to dismiss a claim sua sponte for lack of prosecution. Link v. Wabash R. Co., 370 U.S. 626, 629-33 (1962); c.f. Fed.R.Civ.P. 41(b) (“If the plaintiff fails to prosecute or comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.”). This inherent power is “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. at 630-31. It is Plaintiffs' duty to prosecute their case. Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). A court need not provide notice to a plaintiff before dismissal. Link, 370 U.S. at 632.
To determine whether a plaintiff's failure to prosecute warrants dismissal of a claim, a court weighs five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). A “district court abuses its discretion if it imposes a sanction of dismissal without first considering the impact of the sanction and the adequacy of less drastic sanctions.” United States v. National Medical Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, “a district court's warning to a party that his failure to obey the court's order will result in dismissal can satisfy the consideration of alternatives requirement.” Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (internal citations omitted).
Here, the first and second factors weigh in favor of dismissal. Dismissal would allow the Court to manage its docket and would satisfy the “public's interest in expeditious resolution” of Plaintiffs' claims. Id. If Plaintiffs do not comply with Court Orders and do not serve Defendants, the resolution of Plaintiffs' claims will be delayed.
As for the third factor, Defendants would suffer prejudice if this matter is not dismissed. Defendants have not received notice of Plaintiffs' lawsuit and Plaintiffs' claims against them, nor have Plaintiffs served Defendants with the Complaint. Although the loss of “a quick victory” is not prejudicial, Bateman, 231 F.3d at 1225, Defendants would have to defend against a lawsuit regarding events that occurred over four and a half years ago if this matter is not dismissed, which may be prejudicial. (See Doc. 1 at 3-10)
The fourth factor does not support dismissal. Dismissal of Defendants at this stage would not support “the public policy favoring disposition of cases on their merits[.]” Henderson, 779 F.2d at 1423.
Finally, as to the fifth factor, alternative sanctions would likely be futile. On July 19, 2022, the Court allowed 90 days from the filing of the Complaint or 60 days from the Court's Order for Plaintiffs to serve Defendants. (Doc. 5 at 1-2) The Court warned Plaintiffs that if they did not timely complete service on Defendants, this action may be dismissed. (Id.) Plaintiffs did not serve Defendants. On September 29, 2022, the Court ordered Plaintiffs to show cause no later than October 31, 2022, as to why this matter should not be dismissed for Plaintiffs' failure to timely complete service on Defendants. (Doc. 9) The Court again warned Plaintiffs that failure to comply with this Court's Orders and timely serve Defendants could result in dismissal of this action. (Id. at 2) Despite the Court's repeated warnings, Plaintiffs did not respond to the Court's Order to Show Cause, and the time to do so has expired. Plaintiffs have made no filings in this matter since the filing of their Complaint and proposed summonses in June 2022.
Only one less drastic sanction than dismissal is available. Although a dismissal for failure to prosecute operates as an adjudication on the merits “[u]nless the dismissal order states otherwise[,]” Fed.R.Civ.P. 41(b), a dismissal with prejudice would be unnecessarily harsh under the circumstances before the Court. Therefore, the Court recommends that this matter be dismissed without prejudice. See, e.g., Kauffman v. Cassidy, 2022 WL 112201, at *1 (D. Ariz. Jan. 12, 2022) (dismissing without prejudice for failure to comply with Court orders); Thurman v. Glendale Police Dept., 2013 WL 6844267, at *2 (D. Ariz. Dec. 30, 2013) (same).
Because Plaintiffs Ottley and Harvey have failed to respond to the Court's Order to Show Cause (Doc. 9) and have failed to comply with Court Orders, the Court may use its discretion to dismiss this matter and it is recommended that the Court do so. See Link, 370 U.S. at 630-31.
IV. CONCLUSION
Because Plaintiffs have not served either Defendant, Plaintiffs have not shown cause for their failure to do so, and the record does not establish adequate cause to grant Plaintiffs Ottley and Harvey an extension of time for service, it is recommended that Defendants be dismissed for failure to serve pursuant to Fed.R.Civ.P. 4(m). Because Plaintiffs Ottley and Harvey have failed to respond to the Court's Orders, it is also recommended that this matter be dismissed without prejudice for failure to comply with Court Orders.
Accordingly, IT IS RECOMMENDED that all the unserved Defendants be dismissed without prejudice for failure to timely serve pursuant to Fed.R.Civ.P. 4(m).
IT IS FURTHER RECOMMENDED that this matter be dismissed without prejudice for Plaintiffs Ottley and Harvey's failure to comply with Court Orders.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.