Opinion
Case No. 2:09-cv-00392-PMP-LRL
11-21-2012
WEST CHARLESTON LOFTS I, LLC, a Nevada limited liability company; WCL COMMERCIAL, LLC, a Nevada limited liability company, Plaintiffs and Counterclaim Defendants, v. R&O CONSTRUCTION COMPANY, a Utah corporation; DOES I through X; and ROE CORPORATIONS I through X, inclusive Defendant and Counterclaim ant R&O CONSTRUCTION COMPANY, a Utah corporation, Third-Party Plaintiff, v. CHARLES G. HALL, an individual; CHRISTINA J. HALL, an individual; MENAHG II, LLC, a Nevada limited liability company; PIERRE GATEL, an individual; LEE JIEUN, as Trustee of the LEE NEVADA TRUST, an individual; TINA LO, an individual; SCOTT CLEMENTS; an individual; PARK209 LLC, a Nevada limited liability company; SUZANNE RENEE WEST, an individual; HONG HUNT, an individual; JAMES C. HUNT JR., an individual; DLS RP, LLC, a Nevada limited liability company; MARK A. STUHMER, an individual; EUGENE ANTHONY RAH. an individual; HAYMAN PROPERTIES, LLC, a Nevada limited liability company; DARREN CAHILL, an individual; VICTORIA CAHILL, an individual; ULTRA INVESTMENTS, LLC, a Nevada limited liability company; GREGORY FREEMAN, an individual; THOM A. ANTONOPOLOUS, an individual; CANDACE BAILEY, an individual; JILL ECKHAUS, an individual; AUGUST W. CHANG, an individual; GAMOCS, LLC, a Nevada limited liability company; JAMES W. PENGILLY, as Trustee of the JAMES W. PENGILLY TRUST; SARAH WILLEY, a Nevada limited liability company; GARY M. FREY, an individual; MARIO ERNST, an individual; SUSAN STONE, as Trustee of the STONE CREST TRUST; VICTORIA O'GARA, as Trustee of the VICTORIA 0' GARA TRUST; PERRY GORE, and MARY GORE, as Trustee of the GZ SPENDTHRIFT TRUST; BLAKE L. SARTFNIII, an individual; JBIZ HOLDINGS LLC, a Nevada limited liability company individual; Third-Party Defendants.
Kent F. Larsen, Esq. Nevada Bar. No. 3463 SMITH LARSEN & WTXOM Cass C. Butler, Esq. Admitted Pro Hac Vice Michael D. Stanger, Esq. Nevada Bar No. 8272 CALLISTER NEBEKER & McCULLOUGH Zions Bank Building Attorneys for Defendant, Counter-Claimant and Third-Party Plaintiff, R& O Construction Company
Kent F. Larsen, Esq.
Nevada Bar. No. 3463
SMITH LARSEN & WTXOM
Cass C. Butler, Esq.
Admitted Pro Hac Vice
Michael D. Stanger, Esq.
Nevada Bar No. 8272
CALLISTER NEBEKER & McCULLOUGH
Zions Bank Building
Attorneys for Defendant, Counter-Claimant and
Third-Party Plaintiff, R& O Construction Company
MOTION TO ENLARGE TIME FOR
SERVICE OF SUMMONS AND
COMPLAINT
MOTION TO ENLARGE TIME FOR SERVICE OF SUMMONS AND COMPLAINT
Defendant/Counterclaimant/Third-Party Plaintiff R&O Construction Company (:'R&0"), by and through its counsel of record, hereby submits its Motion to Enlarge Time for Service of the Summons and Complaint.
This Motion is made and based upon the Points and Authorities attached hereto, the papers and pleadings on file herein, and such oral argument as may be entertained by the Court at the time and place of the hearing of this matter.
POINTS AND AUTHORITIES
I.
RELEVANT BACKGROUND
On July 23, 2012, R&O's Third Amended Third-Party Complaint (the "Amended Complaint") was filed as Document No. 187. Pursuant to Fed.R.Civ.P. 4(m), the Amended Complaint is to be served within 120 days of filing, which is November 20, 2012. However, despite due diligence in serving all parties with the Amended Complaint, there are three parties that R&O will be unable to serve within the 120 period - Suzanne West ("West"), Eugene Rah ("Rah"'), and Sarah Willey ("Willey"). Below is a summary of the attempts to serve West, Rah, and Willey. West
Attempted service was made on West at her last known address by Bert Lott, process server # 1471, on October 17, 2102, October 22, 2012, October 25, 2012, and October 27, 2012. See Exhibit A. On each occasion, no response was received at the door, and no lights were observed on at the residence. See id. Mr. Lott did speak with a neighbor who indicated that she believes West's son lives at the last known address, but he travels often and is away from the property for the majority of the time. See id. Mr. Lott was unable to confirm if West lives at the last known address. Rah
As noted below in Section III, West clearly has knowledge of this lawsuit, as she has filed a Joinder to a Motion to Dismiss and filed her own Motion for Judgment on the Pleadings.
Attempted service was made on Rah at his last known address by Mr. Lott on October 22, 2012. See Exhibit B. On this occasion, Mr. Lott was informed by the occupant that Rah no longer lives at this last known address. See id. Willey
Attempted service was made on Willey at her last known address by Mr. Lott on October 17, 2102, October 22, 2012, October 25, 2012, and October 27,2012. See Exhibit C. On each occasion, no response was received at the door, no lights were observed on at the residence, and Mr. Lott could not obtain a response, or other information regarding Willey's whereabouts, from the neighbors. See id.
II.
LEGAL STANDARD
Rule 4 states as follows, in relevant part:
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.(emphasis added). "Rule 4(m) ... requires a district court to grant an extension of time when the plaintiff shows good cause for the delay. Additionally, the rule permits the district court to grant an extension even in the absence of good cause. Efaw v. Williams, 473 F.3d 1038,1040 (9th Cir. 2007) (emphasis in original).
District courts have broad discretion to extend time for service under Rule 4(m). In Henderson v. United States, 517 U.S. 654, 661, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996), the Supreme Court stated that Rule 4's 120-day time period for service "operates not as an outer limit subject to reduction, but as an irreducible allowance." This court in Mann, held that Rule 4(m) gave the district court discretion to extend time of service. On its face, Rule 4(m) does not tie the hands of the district court after the 120-day period has expired.Id. at 1041 (citations omitted).
Under the Rule [4] a plaintiff has two potential avenues to relief from a dismissal for failure to comply with the 120-day service window: first, he may establish "good cause" for his failure to timely serve the defendant, in which case the district court must grant an enlargement of time for service, second, the district court may, in its discretion, grant an extension even if plaintiff has, not demonstrated "good cause."Brandon H. v. Kennewick School Dist. No. 17,133 F.3d925 at *1 (9th Cir. 1997)(citationsomitted; emphasis in original).
See also Fed.R.Civ.P. 6(b), which states that "[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time ... with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires." Here, the original time to serve the Amended Complaint has not expired. But, as will be discussed below, R&O has good cause for not serving West, Rah, and Willey.
"At a minimum, 'good cause' means excusable neglect. Further, the court may grant an extension even in the absence of good cause, taking into account various factors: 'a statute of limitations bar, prejudice to the defendant, actual notice of the lawsuit, and eventual service.'" Tain v. Hennessey, 2009 WL 2151883 al *1 (S.D. Cal. 2009) (citations omitted).
III.
LEGAL ARGUMENT
As noted above, there is good cause for R&O's inability to serve West, Rah, and Willey with the Summons and Complaint within the 120 time period, despite R&O's attempts at service. Moreover, with regard to West, she clearly has knowledge of the suit and is therefore not prejudiced by not yet being served. In fact, West had demonstrated her knowledge of the suit by filing a Joinder to Third-Party Defendant Park 209's Motion to Dismiss (see Dkt. 248) and by filing her own Motion for Judgment on the Pleadings (see Dkt. 189).
Moreover, it appears from the Mr. Lott's Proofs of Service, see Exhibits A-C attached hereto, that West, Rah, and Willey may no longer reside at their last known address. Therefore, R&O needs additional time to conduct a "skip trace" or to otherwise locate the third-party defendants, which R&O believes will lead to the eventual service of process. See Tain, 2009 WL 2151883 at *1 ("the court may grant an extension even in the absence of good cause, taking into account various factors: 'a statute of limitations bar, prejudice to the defendant, actual notice of the lawsuit, and eventual service").
Based upon the foregoing, R&O respectfully requests an additional 90-120 days to serve West, Rah, and Willey, as well as any other third-party defendant that may not have been served yet. R&O has demonstrated good cause, and under Rule 4, the Court must grant R&O an extension to serve the Amended Complaint and Summons. See Efaw, 473 F.3d at 1040.
Upon information and belief, all other third-party defendants have been served, but in the event that this information is incorrect, R&O respectfully requests that any Order granting this Motion enlarges the time for service as to all third-party defendants.
However, if for some reason the Court finds that R&O has not demonstrated good cause, the Court still has discretion to grant R&O's request for enlargement of time, which R&O requests. See id. This is supported by the facts mentioned above, as well as the fact that there are 29 third-party defendants, and R&O has served all but three within the original 120 lime period after Filing the Amended Complaint. Thus, it is evident that R&O has been diligent in serving, or attempting to serve, the Summons and Amended Complaint on all third-party defendants, Therefore, R&O respectfully requests 90-120 additional days to serve the Summons and Amended Complaint.
IV.
CONCLUSION
Based upon the foregoing, R&O respectfully requests that the Court grant R&O's Motion to Enlarge Time for Service of the Summons and Complaint.
SMITH LARSEN & WIXOM
____________
Kent F. Larsen, Esq.
Nevada Bar. No. 3463
SMITH LARSEN & WIXOM
1935 Village Center Circle
Las Vegas, Nevada 89134
(702)252-5002
Michael D. Stanger, Esq.
CALL1STER NEBEKER & McCULLOUGH
Zions Bank Building
10 East South Temple, Suite 900
Salt Lake City, Utah 84133
(801)530-7300
Attorneys for Third-Party Plaintiff,
R&O Construction Company
CERTIFICATE OF MAILING
I HEREBY CERTIFY that on the 20th day of November, 2012, service of the foregoing Motion to Enlarge Time for Service of Summons and Complaint was served electronically via CM/ECF and/or mailed, postage prepaid, to the following:
Charles G. Hall, III & Christina J. Hall
11441 Allerton Park Drive, #201
Las Vegas, NV 89135-3375
Menahg II, LLC
c/o Premier Trust, Inc.
4465 S. Jones Boulevard
Las Vegas, NV 89103
Pierre Gatel
11441 Allerton Park Drive, #204
Las Vegas, NV 89135
Christina H. Wang, Esq.
Fidelity National Law Group
2450 St. RosePkwy., Ste. 150
Henderson, Nevada 89074
Attorneys for Third-Party Defendants
Jieun Lee, as Trustee of the Lee Nevada Trust;
and Perry Gore and Mary Gore,
as Trustees of the GZ Spendthrift Trust
James C. Hunt
11441 Allerton Park Drive, #211
Las Vegas, NV 89135
DLS RP LLC
2767 North Tenaya Way
Las Vegas, NV 89128
Eugene Anthony Rail
11441 Allerton Park Drive, #214
Las Vegas, NV 89135-3375
Darren & Victoria Cahill
2661 Red Arrow Drive
Las Vegas, NV 89135
Gregory Freeman
32 Cross Ridge Street
Las Vegas, NV 89135
Aaron R. Maurice, Esq.
Woods Erickson & Maurice, LLP
1349 W. Galleria Drive, Suite 200
Henderson, NV 89014
Attorneys for Third-Party Defendant
Thorn A. Antonopoulos
Candace Bailey
11441 Allerton Park Drive, #405
Las Vegas, NV 89135-3375
Hayman Properties, LLC
c/o L&R Service Company of Nevada
3993 Howard Hughes Parkway, Suite 600
Las Vegas, NV 89169
Hayman Propertiesm, LLC
c/o: Jennifer Merrill
13 Vintage Court
Las Vegas, NV 89113-1353
Ultra Investments, LLC
c/o Doug Sawyer
2816 Summer Lake Drive
Las Vegas, NV 89128
Jill Eckhaus
546 7lh Street
Huntington Beach, CA 92648
August W. Chang
11441 Allerton Park Drive, #408
Las Vegas, NV 89135-3377
James W. Pengilly
James W. Pengilly Trust
1755 Village Center Circle
Las Vegas, NV 89134
Gary M. Frey
Mario Ernst
1088 Villa Grove
Pacific Palisades, CA 90272-3945
The Victoria O'Gara Trust
1061 Woodland Drive
Beverly Hills, CA 90210-2936
Blake L. Sartini, II
P.O. Box 31106
Las Vegas, NV 89173-1106
Susan Stone
Stone Crest Trust
1658 Crest Drive
Encinilas, CA 92024-5211
WCL Commercial, LLC
9500 Hillwood Drive, Suite 200
Las Vegas, NV 89134
West Charleston Lofts, I, LLC
c/o John M. Sacco
1001 Park Run Drive
Las Vegas, NV 89145
Dale A. Hayes, Jr., Esq.
1050 Indigo Drive, Suite 120
Las Vegas, NV 89145
Gamocs, LLC
4616 W. Sahara Avenue
Las Vegas, NV 89102
Gamocs, LLC
c/o Cane Clark Agency, LLC
3273 E. Warm Springs Road
Las Vegas, NV 89120
IT IS ORDERED that the deadline for service of Summons and Complaint is extended 90 days from the date of entry of this order.
____________
PHILIP M. PRO
UNITED STATES DISTRICT JUDGE
________________________
An Employee of SMITH, LARSEN & WIXOM