United States District Court, W.D. Washington
ORDER DENYING MOTIONS TO DISMISS AND GRANTING MOTION
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Marcella Fleming
Reed's Motion to Dismiss (Dkt. #15), Defendants Karen
Hasting, and Barbara Lucken, Dee Thayer's Motion to
Dismiss (Dkt. #22), and Plaintiff Ron Gipson's Motion to
Amend Complaint (Dkt. #17).
the significant briefing before this Court, there is a
simple, dispositive threshold question: did Plaintiff have
good cause for his failure to timely serve the individual
Defendants in this case? There is no factual dispute; the
parties agree Plaintiff timely served Defendant Snohomish
County but not the individual defendants. See Dkt.
#26 at 2 (Plaintiff admits he timely served Snohomish County
“but did not affect service on any of the other named
defendants”). Defendants' Motions to Dismiss are
based solely on Plaintiff's failure to serve within the
time limit, and Defendants' opposition to Plaintiff's
Motion to Amend, if any, is based on futility due to
Plaintiff's failure to timely serve. See Dkts.
#15, #21, and #22.
legal standard is straightforward:
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 the 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.
Fed. R. Civ. P. 4(m) (emphasis added). The Court notes that
the second, emphasized sentence is a part of Rule 4(m),
despite the briefing from the individual Defendants omitting
it from the Rule. See Dkt. #15 at 2; Dkt. #22 at 3;
Dkt. #32 at 2.
argues good cause exists here because he initially proceeded
pro se, and that once he retained counsel that
counsel determined it was necessary to file an amended
complaint and “the decision was made to serve the
remaining Defendants with the First Amended Complaint once
drafted.” Dkt. #26 at 3. Plaintiff argues that any
delay in drafting this Amended Complaint was due to
“the need to review the arbitration testimony and the
late date upon which it was delivered to Counsel for the
Plaintiff.” Id. Plaintiff argues that he has
shown at least some diligence in that he “did serve the
original Complaint on Defendant Snohomish County.”
Id. Plaintiff also argues that, practically
speaking, “all defendants in this litigation had
knowledge of the fact that the Complaint had been filed and
were generally aware of its contents, ” perhaps because
“Defendants were all directly in employed [sic] by
Snohomish County or as in the case of Ms. Reed hired by
Snohomish County as an independent third-party…”
Id. at 3-4. Plaintiff further discusses the reasons
for the delay in filing the Amended Complaint and service.
Id. at 4. Plaintiff argues that the individual
Defendants suffered “virtually no prejudice” and
that they were served within 120 days after the original
Complaint was filed. Id. Plaintiff also points out
that “many the [sic] originally named individual
Defendants were not appropriate and thereby the Plaintiff has
agreed to their dismissal…”
Id.Plaintiff has apparently personally served all
remaining Defendants with a copy of the Amended Complaint.
See Dkt. #25 at 2.
Reed argues that “plaintiff points to his pro se status
to gain the court's favor, ” and that “no
extra leniency is granted to pro se litigants.” Dkt.
#28 at 2. Defendant Reed fails to frame the issue in terms of
“good cause” and refers to the Rule 4(m) 90-day
time limit as a firm deadline without citation to the
emphasized second sentence of the rule above.
Lucken, Hastings, and Thayer argue that Plaintiff's
strategic reasons nor a desire to amend the complaint before
effective service constitutes good cause. Dkt. #32 at 2-3
(citing Fimbres v. United States, 833 F.2d 138, 139
(9th Cir. 1987); Wei v. State of Hawaii, 763 F.2d
370 (9th Cir. 1985)). Defendants argue that prejudice to the
Defendants is not relevant because the word
“prejudice” does not appear in Rule 4(m).
Id. at 3-4.
Court begins by noting that Defendant Reed misstates the
appropriate standard and provides no compelling argument as
to good cause. Defendants Lucken, Hastings, and Thayer do
address this issue in their Reply brief, but the cases they
cite are readily distinguishable. In Fimbres, the
plaintiffs argued they intentionally did not serve the
defendant. See 833 F.2d at 139. Here, there is no
evidence that Mr. Gipson's original failure to serve the
individual Defendants was intentional rather than a
misunderstanding of the law. The Court could easily find that
Mr. Gipson, acting pro se, believed, perhaps
unreasonably, that service on Snohomish County would qualify
as service for the individually named Defendants who worked
for Snohomish County. His failure, in other words, was likely
mere negligence. In Wei, the plaintiff did not
attempt to explain how he was delayed in amending the
Complaint. See 763 F.2d at 372. Here, Mr. Gipson,
via his new counsel, has provided at least some explanations
for the delay in filing the Amended Complaint. Defendants
fail to analyze whether these explanations were reasonable or
could support a finding of good cause.
arguments for good cause are thin. The Court is surprised to
find no declaration of Mr. Gipson explaining his failure to
timely serve while he proceeded in this case pro se.
Nevertheless, the Court believes that Plaintiff, when he was
pro se, assumed service on Snohomish County was
sufficient for all Defendants. This mistake, although
understandable, is insufficient alone to constitute good
cause. However, Plaintiff also argues that failure to timely
serve was due to a delay, reasonable or not, while new
counsel got up to speed and drafted a proper Amended
4(m) allows for substantial court discretion. For example,
even if Plaintiff failed to demonstrate good cause, the Court
could easily “order that service be made within a
specified time.” Fed.R.Civ.P. 4(m). The Court believes
that all remaining Defendants have now been served with a
copy of Plaintiff's Amended Complaint. If this is not the
case, they are at least on full notice of the filings in this
lawsuit. Plaintiff is correct that Defendants have suffered
virtually no prejudice at this early stage in the litigation.
The failure to timely serve was due, in part, to a good faith
effort of Plaintiff's counsel to move this case forward
on proper footing. The Court sees no value in dismissing this
case with prejudice. Accordingly, the Court finds that
Plaintiff has presented sufficient good cause to warrant 14
days' additional time to serve under Rule 4(m) and will
therefore deny Defendants' Motions to Dismiss. Since this
was the only basis for opposition to Plaintiff's Motion
to Amend Complaint, the Court will grant the requested
Court acknowledges' Defendant Snohomish County's
request that the Court “enter an Order dismissing the
individual Defendants named in the initial Complaint who are
no longer included in the proposed Amended Complaint”
and will do so. Dkt. #20 at 2.
reviewed the relevant briefing and the remainder of the
record, the ...