Moore v. Duran

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MERRICK MOORE, Case No. 3:23-CV-00194-GPC-DDL 12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. EXTENDING TIME FOR SERVICE 14 J.J. DURAN et al., [ECF No. 87] 15 Defendants. 16 17 Before the Court is Plaintiff’s unopposed motion to extend time for service on 18 Defendant D. Manquero. ECF No. 87. 19 Under Federal Rule of Civil Procedure 4(m), if a defendant is not served within 90 20 days after the complaint is filed, the court must dismiss the action without prejudice or 21 order that service be made within a specified time. Fed R. Civ. P. 4(m). But if the 22 plaintiff shows good cause for the failure, the court must extend the time for service. Id. 23 If good cause is not established, the district court may extend time for service upon a 24 showing of excusable neglect. Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 25 2009). This is an exercise of “broad” discretion. In re Sheehan, 253 F.3d 507, 513 (9th 26 Cir. 2001) (citing Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 27 1 1995)). “The determination of whether neglect is excusable is at bottom an equitable 2 one, taking account of all relevant circumstances surrounding the party’s omission,” 3 including at least four factors: (1) the danger of prejudice to the opposing party; (2) the 4 length of the delay and its potential impact on judicial proceedings; (3) the reason for the 5 delay; and (4) whether the movant acted in good faith. Lemoge, 587 F.3d at 1192. 6 Based on these factors, the Court finds that Plaintiff demonstrates excusable 7 neglect. First, there is no real danger of prejudice to Manquero because the evidence that 8 he would bring would be testimonial, rather than lost or destroyed physical evidence. 9 Secondly, the delay from Plaintiff has not been great and there will be minimal impact on 10 the proceedings. Thirdly, the delay was caused by Manquero’s departure from the 11 California Department of Corrections and Rehabilitation (CDCR), Plaintiff’s transfer 12 from one institution to another, and Plaintiff’s pro se status (until as of late). None of 13 these were within Plaintiff’s control. Finally, Plaintiff did not act in bad faith, and 14 actually tried to obtain contact information for Manquero from the state prison officials. 15 See ECF No. 85. 16 Additionally, “as long as Defendant [Manquero’s] forwarding address can be 17 easily ascertained by reference to the CDCR’s personnel records, Plaintiff is entitled to 18 rely on the [U.S. Marshals Service] to effect service upon this Defendant on his behalf.” 19 Morris v. Barr, 2011 WL 3859711, at *2 (S.D. Cal. Aug. 31, 2011); see also Jensen v. 20 Knowles, 621 F.Supp.2d 921, 930 (E.D. Cal. 2008) (“it is highly unlikely [the defendant] 21 vanished from the CDCR without so much as a last known address”). The U.S. Marshals 22 Service (USMS) already attempted service on Manquero by mailing a summons, waiver, 23 and complaint to the Litigation Office of Richard J. Donovan Correctional Facility (RJD), 24 but the RJD Litigation Coordinator refused service “due to the inability to locate and 25 contact this defendant… after his separation from CDCR.” ECF No. 17. There is no 26 27 1 record of any follow-up by the USMS after the summons was returned as unexecuted. 2 See id. 3 The Court finds that under these circumstances, the Court can direct the USMS to 4 attempt to effect service upon Defendant Manquero. See Guerrero v. Moore, 2021 WL 5 3370816, at *2 (S.D. Cal. Aug. 3, 2021) (directing USMS to attempt service by 6 contacting prison’s legal coordinator or the CDCR after summons was originally returned 7 unexecuted); Morris, 2011 WL 3859711, at *2 (same). In order to preserve Manquero’s 8 privacy, any contact information should be sent to the USMS in a confidential 9 memorandum, and the USMS should file any such information under seal. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The motion to extend time for service on Defendant Manquero is GRANTED; 12 2. The Clerk of the Court is DIRECTED to forward a copy of this Order to the 13 U.S. Marshals Service; 14 3. Within 30 days of this Order, the U.S. Marshals Service is DIRECTED to 15 contact the CDCR’s Legal Affairs Division and the Litigation Coordinator at 16 RJD for a current address for Defendant Manquero. If CDCR or RJD officials 17 are unable to locate Defendant Manquero or his last address, some explanation 18 should be proffered as to why they lack such information. 19 4. Within 15 days of receipt of any available address for Defendant, the Court 20 ORDERS the USMS to serve a copy of Plaintiff’s complaint and summons 21 upon Defendant. All costs of service shall be advanced by the United States 22 pursuant to the Court’s Order granting Plaintiff leave to proceed in forma 23 pauperis for purposes of U.S. Marshals service pursuant to 28 U.S.C. § 1915(d) 24 and Fed. R. Civ. P. 4(c)(3). ECF No. 8. 25 IT IS SO ORDERED. 26 27 1 || Dated: December 4, 2024 2 sale Ok 2 Hon. Gonzalo P. Curiel 3 United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23-CV-00194-GPC-DDL