United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants' motion to
dismiss (Dkt. No. 8). Having thoroughly considered the
briefing and the relevant record, the Court finds oral
argument unnecessary and hereby DENIES the motion for the
reasons explained herein.
Triston Spears (“Spears”) brought suit against
several employees of the King County Department of Adult
Detention (“Defendants”) for allegedly assaulting
him during a pat-down search while Spears was detained in the
King County Work Release Program. (See Dkt. No. 1 at
1-2.) Spears brought claims under 42 U.S.C. § 1983 and
42 U.S.C. § 15061 (Prison Rape Elimination Act
(“PREA”)). The assault allegedly occurred in May
2014, but Spears did not file his complaint until May 19,
weeks after filing the complaint, Spears' attorney moved
to withdraw as counsel. (Dkt. No. 5.) The Court granted the
motion to withdraw, and Spears is currently unrepresented.
(Dkt. No. 7.) On August 30, 2017, Defendants moved to
dismiss, claiming they were never served Plaintiff's
complaint. (Dkt. No. 8 at 1.) Plaintiff did not file a
response to Defendant's motion to dismiss, and Defendants
filed a reply. (Dkt. No. 12).
must generally be served within 90 days of the complaint
being filed. Fed.R.Civ.P. 4(m). If a defendant is not served
within 90 days, the Court must either dismiss the action
without prejudice or order that service be completed within a
specified time. Id. District courts have broad
discretion to extend time for service under Rule 4(m).
Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir.
2007). When deciding whether to extend the time for service
under Rule 4(m), 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)).
complaint was filed on May 19, 2017. (Dkt. No. 1.) Plaintiff
needed to serve Defendants with his complaint by August 17,
2017 to meet Rule 4(m)'s 90-day deadline. Having not
filed a response, Spears has not provided evidence that he
has served or attempted to serve Defendants. Although the
Court could grant Defendants' motion under Rule 4(m), it
is instead choosing to give Spears an additional 30 days to
Court is sympathetic to Spears' current position. First,
his attorney withdrew within weeks of filing his complaint.
(Dkt. No. 5.) That turn-of-events, when coupled with the fact
that Spears has not yet retained new counsel, made it harder
for Spears to comply with the Rule 4 service requirements.
His current lack of an attorney is also likely the reason why
Spears did not file a response brief to Defendants'
motion to dismiss. In their reply, Defendants ask the Court
to consider Spears' lack of a response as another reason
to dismiss his lawsuit. (Dkt. No. 12 at 1-2.) The Court has
discretion under Federal Rule of Civil Procedure 56(e)
regarding how to treat a party's lack of responsive
briefing. Fed.R.Civ.P. 56(e) (Where a party fails to properly
address another party's assertion the court may
“(4) issue any other appropriate order.”). Given
the procedural history of this case, the Court chooses not to
treat Spears' failure to file a response as a basis for
dismissing his lawsuit. Second, if the Court chooses to
dismiss the complaint for this procedural deficiency, Spears
will almost certainly lose his ability to bring his claims in
the future based on the applicable statute of
statute of limitations issue would effectively nullify Rule
4(m)'s option of a dismissal without prejudice to allow a
plaintiff to refile. Fed.R.Civ.P. 4(m). Such a result would
be quite harsh for a plaintiff who suddenly finds himself
without a lawyer and alone to navigate the Federal Rules of
Civil Procedure. The Court will exercise its discretion to
avoid this result. Finally, the Court perceives no prejudice
to Defendants by allowing Spears additional time to perfect
service, as they are on notice of the lawsuit and the
extension of time is minimal.
foregoing reasons, Defendants' motion to dismiss is
DENIED. Pursuant to Rule 4(m), Spears is ORDERED to perfect
service on Defendants within 30 days of the issuance of this
order. If Spears fails to serve Defendants within 30 days of
the issuance of this order, Defendants may renew their motion
to dismiss. The Clerk is further DIRECTED to send a copy of
this order to Plaintiff.