United States District Court, W.D. Washington, Tacoma
ORDER ON DOE DEFEDANTS' MOTION TO DISMISS;
PLAINTIFF BELL'S MOTION TO COMPEL; AND PLAINTIFF
BELL'S MOTION FOR LEAVE TO AMEND DKT. ## 51, 54, &
B. LEIGHTON UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendants DOEs 1-25's
Motion to Dismiss under Rule 4(m) [Dkt. # 51]; Plaintiff
Kevin Michael Bell's Motion to Compel Unredacted
Discovery and for Sanction, Fees, and Costs [Dkt. # 54]; and
Plaintiff Bell's Motion for Leave to Amend [Dkt. # 62].
As explained in previous Orders, this case concerns an
incident that allegedly occurred in August 2016. Bell was
arrested by the Lacey police for shoplifting and incarcerated
at a Nisqually Tribe detention facility pursuant to a Jail
Services Agreement between the Tribe and the City. While
there, Bell suffered a stroke and was removed to receive
medical help. On November 9, 2018, Bell filed suit against
parties related to the Tribe and the City of Lacey. Among
these Defendants are the unnamed individuals who were
supposedly responsible for Bell's care while he was
Defendants have moved to dismiss because of Bell's
inability to name and serve the fictitious defendants that
allegedly violated his rights while he was incarcerated. Dkt.
# 51. Bell, for his part, argues that his failure to serve
the Doe Defendants is a result of Defendants'
intransigence during discovery and has moved to compel
production of his un-redacted jail file. Dkt. # 54. Bell has
also moved for leave to amend his Complaint to name three of
the Doe Defendants and revise his claims. Dkt. # 62.
Court considers all three of these Motions below and DENIES
the Doe Defendants' Motion, and GRANTS Bell's Motions
to Compel and for Leave to Amend, but DENIES Bell's
Motion for Fees, Costs, and Sanctions.
Doe Defendants' Motion to Dismiss
4(m) governs the time for service of the summons and
complaint on defendants and involves a “two-step
analysis in deciding whether or not to extend the prescribed
time period.” In re Sheehan, 253 F.3d 507, 512
(9th Cir. 2001). “First, upon a showing of good cause
for the defective service, the court must extend the time
period.” Id. “Second, if there is no
good cause, the court has the discretion to dismiss without
prejudice or to extend the time period.” Id.
This discretion includes extending the time period on account
of “excusable neglect.” Crowley v.
Bannister, 734 F.3d 967, 976 (9th Cir. 2013).
Rule 4 provides only 90 days for service, the Ninth Circuit
has suggested that plaintiffs may receive a little more
leeway when certain defendants' identities are unknown.
Gillespie v. Civiletti held that, “where the
identity of alleged defendants will not be known prior to the
filing of a complaint . . . [t]he plaintiff should be given
an opportunity through discovery to identify the unknown
defendants, unless it is clear that discovery would not
uncover the identities, or that the complaint would be
dismissed on other grounds.” 629 F.2d 637, 643 (9th
Cir.1980). As one court has held, Gillespie
“implicitly recognized [that] an information deficit,
where discovery would correct that deficit, is good cause to
allow a plaintiff an extended period of time to identify and
serve unknown defendants.” Ticketmaster L.L.C. v.
Prestige Entm't W., Inc., 315 F.Supp.3d 1147, 1158
(C.D. Cal. 2018). However, dismissal is still proper if the
plaintiff has delayed in obtaining discovery on the unnamed
defendants or has failed to amend their complaint even after
the defendant provided information. See Corrigan v.
Unknown King Cty. Deputy #1, No. C05-1727P, 2006 WL
3249135, at *2 (W.D. Wash. Nov. 8, 2006); Garcia v. Clark
Cty., No. 207-CV-01507-RCJ-PAL, 2009 WL 3786060, at *5
(D. Nev. Nov. 10, 2009) (distinguishing Gillespie).
the Court is satisfied that Bell should receive additional
time to effect service on the unidentified Doe Defendants.
Bell filed his case on December 14, 2018. The parties were
initially absorbed in briefing for Bell's motion for
preliminary injunction, which was denied on March 7, 2019.
The parties then exchanged initial disclosures on April 29,
which Defendants Simmons and Tiam apparently redacted to
conceal the identity of the Doe Defendants. Dkt. # 53-1. Bell
served discovery on the counsel of record for the Doe
Defendants on May 19. This apparently went unanswered.
Meanwhile, the parties spent the greater part of April
through July litigating whether the Nisqually Tribe and its
officers should be dismissed on sovereign immunity grounds,
which they were on July 29. Dkt. # 58. Bell apparently served
discovery on the Tribe and its officers regarding the Doe
Defendants' identities sometime in July. Dkt. # 51 at 3.
light of all this, Bell has several reasons for failing to
amend his Complaint sooner. First, and most importantly, the
Tribe Defendants appear to have thwarted Bell's chances
of identifying the Doe Defendants by redacting their initial
disclosures. Second, the parties have been entangled in tense
litigation ever since submitting their discovery plan on May
6. While Bell likely should have wasted no time in serving
discovery regarding the Doe Defendants on the identified
Tribe Defendants, his negligence was relatively minor and
excusable under the circumstances. The Court thus finds that
Bell should receive additional time to identify and serve the
remaining Doe Defendants and DENIES the Doe Defendants'
Bell's Motion to Compel Discovery
moves to compel production of an unredacted version of the
Tribe Defendants' initial disclosure documents,
specifically Bell's “jail file” from the time
he was incarcerated at the Nisqually facility. See Dkt.
# 59 at 2; Dkt. # 53-1. Bell argues that unredacted copies
must be compelled because Defendants provided no privilege
log justifying their redactions or sought a protective order
from the Court. See In re Grand Jury Investigation,
974 F.2d 1068, 1071 (9th Cir. 1992) (holding that a privilege
log is an acceptable way of showing a privilege exists). The
Doe Defendants, who are the only remaining Defendants
associated with the Tribe, argue that they are not subject to
Rule 26 because they have not been identified and therefore
are not parties to the case.
rule that a person becomes a party to an action either
through valid service of process or voluntary appearance
“appl[ies] with equal force to persons fictitiously
named.” Nagle v. Lee, 807 F.2d 435, 440 (5th
Cir. 1987) (citing Restatement (Second) of Judgments
§ 34, at 345 (1982) and holding that unnamed defendants
never became parties to the previous action for purposes of
applying res judicata); see also Dixon v. Armas, No.
113CV00165DADEPG, 2017 WL 4299204, at *2 (E.D. Cal. ...