Nevis v. Edson

[5] 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA [8] 9 JOSEPH DANIEL NEVIS, No. 2:18-cv-03238-JAM-DMC 10 Plaintiff, 11 v. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 12 CHRIS EDSON, 13 Defendant. [14] 15 Plaintiff Joseph Nevis (“Plaintiff”) commenced this action 16 (“Nevis II”) against Chris Edson (“Defendant”), on December 20, 17 2018, alleging Defendant negligently operated the Amtrak train 18 that struck and amputated Plaintiff’s legs. See Compl., ECF No. 19 1. Plaintiff also seeks punitive damages. Id. Defendant moved 20 for dismissal on December 18, 2019, arguing Plaintiff’s service 21 was not timely and this lawsuit is duplicative of Nevis v. 22 Rideout Memorial Hospital, et al, 17-cv-02295 (“Nevis I”). Mot., 23 ECF No. 8. Plaintiff opposed Defendant’s motion. Opp’n, ECF No. 24 9. For the reasons set forth below, the Court GRANTS Defendant’s 25 Motion to Dismiss.1 [26] 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for February 25, 2020. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 A discussion of the instant action’s procedural history 3 would be incomplete absent a discussion of Nevis v. Rideout 4 Memorial Hospital, et al, 17-cv-02295. The two cases are 5 inextricably intertwined. Nevis I was filed on November 1, 2017. 6 See Compl. 17-cv-02295 (“Nevis I Compl.”), ECF No. 1. Nevis I 7 named, among others, Defendant’s employer, National Railroad 8 Passenger Corporation (“Amtrak”), and Doe Engineer, Conductor, 9 and Train Operators as defendants. See Nevis I Compl. at 1. 10 After Plaintiff indicated he would not amend the complaint to 11 name the Doe defendants, they were dismissed from Nevis I. See 12 Nevis I Joint Status Rep., ECF No. 9; Nevis I Status Pretrial 13 Scheduling Order, ECF No. 11. 14 On February 23, 2018, during Nevis I’s discovery process, 15 Defendant was identified as the engineer of Amtrak’s train. Mot. 16 at 2. Nevis II was filed ten months later. See Compl. 18-cv17 03238 (“Nevis II Compl.”), ECF No. 1. But Defendant was not 18 served in Nevis II until November 27, 2019—nearly a year after 19 the case was filed. Mot. at 3. Meanwhile, the defendants in 20 Nevis I filed motions for summary judgment. See Nevis I Defs.’ 21 Mots. for Summ. J., ECF Nos. 66, 89, 90. Following the 22 adjudication of those motions, negligence claims are all that 23 remain in Nevis I. See Nevis I Hr’g Min., at ECF Nos. 82, 112. 24 Included in Plaintiff’s remaining claim against Amtrak is the 25 allegation that Defendant, as Amtrak’s engineer, was negligent in 26 failing to maintain a proper lookout. See Tr. of Mot. Hr’g, at 27 ECF No. 119. 28 Accordingly, the remaining claim against Amtrak in Nevis I 1 is the same as the claim against Defendant in Nevis II. Both 2 allege Defendant negligently operated the Amtrak train that 3 struck and injured Plaintiff. [4] 5 II. OPINION 6 A. Legal Standard 7 “A federal court does not have jurisdiction over a defendant 8 unless the defendant has been served properly under [Federal Rule 9 of Civil Procedure] 4.” Direct Mail Specialists v. Eclat 10 Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). 11 Although courts flexibly interpret this rule, neither actual 12 notice nor naming the defendant in the complaint is sufficient to 13 provide personal jurisdiction without substantial compliance with 14 Rule 4. Id. (citing Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 15 1986), cert. denied, 484 U.S. 870 (1987)). 16 A party may move to dismiss a pleading based on insufficient 17 service of process, Fed. R. Civ. P. 12(b)(5). Service of process 18 is insufficient “[i]f a defendant is not served within 90 days 19 after the complaint is filed . . . .” Fed. R. Civ. P. 4(m). 20 Rule 4(m) “encourages efficient litigation by minimizing the time 21 between commencement of an action and service of process.” 22 Electric Specialty Co. v. Road and Rach Supply, Inc., 967 F.2d 23 309, 311 (9th Cir. 1992) (addressing former Fed. R. Civ. P. 24 4(j)). “Where service of process is insufficient, the court has 25 broad discretion to dismiss the action or to retain the case but 26 quash the service that has been made on defendant.” Cranford v. 27 United States, 359 F. Supp. 2d 981, 984 (E.D. Cal. 2005). 28 However, if plaintiff has shown good cause for the failure 1 to effect service timely, plaintiff is entitled to a mandatory 2 extension. Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 3 2007). “At a minimum, ‘good cause’ means excusable neglect.” 4 Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). “Good 5 cause” for delay “generally means that service has been attempted 6 but not completed, that plaintiff was confused about the 7 requirements of service, or that plaintiff was prevented from 8 serving defendants by factors beyond his control.” Hernandez v. 9 Senegor, No. 2:11-cv-3248, WL 1966122 at *4 (E.D. Cal. 2013) 10 (internal citation omitted). Inadvertent error or ignorance of 11 governing rules alone will not excuse plaintiff’s failure to 12 effect timely service. Wei v. Hawaii, 763 F.2d 370, 372 (9th 13 Cir. 1985). 14 In addition to establishing good cause, Plaintiff may also 15 be required to show: (a) the party to be served personally 16 received actual notice of the lawsuit; (b) the defendant would 17 suffer no prejudice; and (c) plaintiff would be severely 18 prejudiced if his complaint were dismissed. Boudette, 923 F.2d 19 at 756. 20 B. Analysis 21 As an initial matter, Plaintiff’s failure to effect timely 22 service is not in dispute. Opp’n at 4. Defendant was served 23 nearly a year after the complaint was filed. Mot. at 3. And 24 because Defendant challenged the sufficiency of service, 25 Plaintiff bears the burden of establishing proper service. 26 Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). 27 Plaintiff, in his opposition, fails to explain, let alone 28 provide good cause, why he served Defendant 343 days after Nevis 1 II was filed. Plaintiff’s arguments regarding his change in 2 counsel or attempts to serve Defendant via Amtrak’s counsel are 3 neither persuasive or constitute good cause. See Opp’n at 4–5. 4 The controlling facts are: Plaintiff’s current counsel took over 5 in April 2019; Defendant was deposed by Plaintiff’s counsel on 6 August 8, 2019; and Defendant was not served until November 27, 7 2019. Opp’n at 4–6. Even assuming Plaintiff did encounter 8 reasonable delays resulting from the change in representation 9 and Amtrak’s counsel’s refusal to accept service on behalf of 10 Defendant, Plaintiff offers no explanation as to why he did not 11 effect service during Defendant’s deposition in Nevis I. That 12 deposition took place four months after current counsel 13 commenced representation—enough time to get up to speed. 14 Plaintiff’s failure to effect timely service is, thus, 15 inexcusable. 16 In weighing whether to dismiss based on insufficient 17 service of process or excuse Plaintiff’s delay, the Court 18 considered the prejudice dismissal would work on the Plaintiff. 19 As Plaintiff points out, if dismissed, the statute of 20 limitations would prevent him from refiling this complaint. 21 Opp’n at 6. But this ultimately results in little prejudice as— 22 by Plaintiff’s own admission—this suit is effectively identical 23 to the claim remaining against Amtrak in Nevis I. Opp’n at 12. 24 Thus, Plaintiff’s ongoing negligence action against Amtrak 25 substantially mitigates any harm resulting from dismissal of the 26 instant action. 27 Accordingly, because Defendant was not properly served, and 28 Plaintiff has not demonstrated good cause to excuse his failure 1 to effect service timely, all claims against Defendant are 2 dismissed. [3] 4 IIl. ORDER 5 The Court GRANTS WITH PREJUDICE Defendant’s Motion to 6 | Dismiss. 7 IT IS SO ORDERED. 8 Dated: February 28, 2020 kA 10 teiren staves odermacr 7008