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3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 Duke Thomas Nguyen, Case No. 2:18-cv-01717-RFB-BNW 7 Plaintiff, 8 ORDER v. 9 PTS of America, LLC., et al., 10 Defendant. 11 12 13 Before the Court is plaintiff Duke Thomas Nguyen’s response to the Court’s order to 14 show cause. ECF No. 82. The Court issued its May 5, 2020 order to show cause directing 15 Nguyen to account for his failure to file a proof of service as to defendant Ryan Rivera. Nguyen 16 responded to the order to show cause but failed to address service upon Rivera and instead wrote 17 that he was “willing and able to proceed without [Zachary] Brandon as a defendant.” Thus, the 18 Court’s order to show cause remains unsatisfied. Now, the Court orders Nguyen to clarify 19 whether he consents to the dismissal of Rivera and Brandon as defendants in this action. If 20 Nguyen does not consent, then he must show cause in writing for why Rivera and Brandon should 21 not be dismissed for failure to file a proof of service in accordance with Rule 4(m). 22 I. Background. 23 Nguyen invokes the Court’s federal question jurisdiction and asserts that defendants 24 violated his rights under the United States Constitution, in violation of

. ECF No. 25 48 at 2, 14–21. Nguyen filed a second amended complaint on May 6, 2019, and it remains the 26 operative complaint in this matter.

27 1 The operative complaint is the first to name defendants Zachary Brandon, Ryan Rivera, and 2 Michael Coleman. See

. On August 14, 2019, this Court extended Nguyen’s deadline to 3 serve Rivera and Brandon to September 3, 2019. ECF No. 61. 4 On September 4, 2019, Nguyen again moved to extend the time for service upon Brandon— 5 but not Rivera—and to effect service upon Brandon by publication. ECF No. 64 at 3. In the motion, 6 Nguyen noted that he had completed service upon every defendant except Brandon, including 7 defendants Rivera and Coleman.

8 The Court extended the time to serve Brandon until June 8, 2020, denied Nguyen’s motion 9 to serve Brandon by publication, and—based on Nguyen’s representation that he had served all 10 defendants except Brandon—ordered Nguyen to file proofs of service as to Rivera and Coleman 11 by April 8, 2020. ECF No. 77 at 6. The Court warned Nguyen that failure to file proofs of service 12 as to Rivera and Coleman would result in an order to show cause.

13 Nguyen filed a proof of service as to Coleman but failed to file a proof of service as to 14 Rivera. See ECF No. 80. Therefore, on May 21, 2020, Nguyen was ordered to show cause for why 15 this Court should not recommend to the district judge that Rivera be dismissed from this action. 16 ECF No. 81. The Court warned Nguyen that failure to comply with the order to show cause could 17 result in sanctions up to and including a recommendation of dismissal.

18 Nguyen purports to have responded to the order to show cause. ECF No. 82. In his 19 response, Nguyen writes that he hired a process server who has made “multiple unsuccessful 20 attempts” to serve the complaint on “individual defendants.”

. Nguyen concluded that he 21 “is willing and able to proceed without [] Brandon” as a defendant, but he did not mention service 22 upon Rivera.

(emphasis added). 23 II. Discussion. 24 Rule 4 allots 90 days to serve a defendant with the complaint. Fed. R. Civ. P. 4(m). The 25 90-day clock begins to run on the day that plaintiff files the first complaint naming a particular 26 defendant. Holmes v. Andre Agassi College Prep Acad., No. 2:12-cv-KJD-VCF,

2838604, at *1 (D. Nev. July 10, 2012) (construing a prior version of Rule 4 1 |} (10th Cir. 2006)). Once the 90-day period for service has expired, the unserved defendant “shall 2 || be dismissed without prejudice” unless plaintiff can show good cause for failing to serve the 3 || defendant in accordance with Rule 4(m). Townsel v. Contra Costa Cnty., Cal.,

, 320 4 || (9th Cir. 1987). 5 Here, the time for service upon Rivera expired on September 3, 2019 (ECF No. 61), and to 6 || date no proof of service has been filed. Further, although the time for service upon Brandon does 7 || not expire until June 9, 2019 (ECF No. 77), the Court believes that based on Nguyen’s 8 || representations, he does not intend to effect service upon Brandon. See ECF No. 82 (“Plaintiff is 9 || willing and able to proceed without Mr. Brandon as a defendant.”). 10 Now, the Court orders Nguyen to file a new response to the Court’s order to show cause by 11 || June 10, 2020. In his new response, Nguyen must indicate whether he consents to the dismissal of 12 || Rivera and Brandon as defendants in this action. If Nguyen does not consent, then in his new 13 || response, he must show cause in writing for why Rivera and Brandon should not be dismissed for 14 || failure to file a proof of service in accordance with Rule 4(m). 15 |} I. Conclusion. 16 IT IS THEREFORE ORDERED that the Court’s order to show cause (ECF No. 81) remains 17 ||) UNSATISFIED. 18 IT IS FURTHER ORDERED that Nguyen must file a new response to the Court’s order to 19 || show cause by June 10, 2020. In his response, Nugyen must indicate whether he consents to the 20 || dismissal of Rivera and Brandon as defendants in this action. If Nguyen does not consent, then he 21 |} must show cause in writing for why Rivera and Brandon should not be dismissed for Nguyen’s 22 || failure file a proof of service in accordance with Rule 4(m). 23 DATED: June 2, 2020. 24 . 05 pn la BRENDA WEKSLER 26 UNITED STATES MAGISTRATE JUDGE 27 28