Ottley v. Ariz. Game & Fish Comm'n
| Decision Date | 09 November 2022 |
| Docket Number | CV-22-01087-PHX-DWL (DMF) |
| Parties | John Randall Ottley, et al., Plaintiffs, v. Arizona Game and Fish Commission, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
REPORT AND RECOMMENDATION
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.
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.
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:
(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) ().
(Doc. 9 at 2) The Court ordered that:
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.
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).
“At a minimum, good cause...
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