23 W. BARRY BLUM 4 Florida Bar No. 379301 5 100 SE 2nd Street, 44th Floor 6 Miami, FL 33131 7 Telephone: (305) 349-2300 8 9 ARI N. ROTHMAN 10 Nevada Bar No. 15806 11 Email: [email protected] 12 600 Massachusetts Avenue, N.W. 13 Washington, D.C. 20001 14 Telephone: (202) 344-4000 15 Facsimile: (202) 344-8300 16

17 Attorneys for Plaintiffs 18

19

20 UNITED STATES DISTRICT COURT 21 DISTRICT OF NEVADA 22

23 ELIZABETH RUEDA and EDWARD CASE NO. 23-cv-00709-CDS-BNW 24 RUEDA, as co-personal representatives 25 of the Estate of Gilma Rueda, 26

27 Plaintiffs MOTION FOR EXTENSION 28 OF TIME TO SERVE

vs. DEFENDANT WITH PROCESS

ADAM D. STOKES,

Defendant.

Plaintiffs Elizabeth Rueda and Edward Rueda, as co-personal representatives of the Estate of Gilma Rueda (“Plaintiffs”), through undersigned counsel and under Fed. R. Civ. P. 4(m), respectfully request a 60-day extension of time to serve Defendant Adam D. Stokes (“Stokes”) with the Summons and Complaint. As demonstrated below, good cause for this extension exists, and alternative grounds exist that warrant this Court’s discretionary extension to avoid prejudice to Plaintiffs from the denial of this motion. 2 31 INTRODUCTION 4 2 1. Fed. R. Civ. P. 4(m) provides that “the court must extend the time for service for an 5 63 appropriate period” when the plaintiff shows good cause for not having perfected service 7 84 within 90 days. Good cause exists when an outside factor prevents service, such as defendant’s 9 105 evasion (as opposed to plaintiff’s negligence or inattention). Here, as detailed below, good 11 6 cause exists because Plaintiffs, at significant expense, have promptly, diligently, and 12 137 repeatedly attempted to locate and serve Defendant Stokes throughout the 90-day service 14 158 window on multiple occasions as his home address and at two different addresses that Stokes, 16 9 a licensed Nevada attorney, has on file with the Nevada Bar; but Stokes, who presumably is 17 1 18 0 now aware of the lawsuit, has evaded efforts to serve him. 19 2101 2. This lawsuit arises from Defendant Stokes’ prior representation as a lawyer of Gilma 21 2122 Rueda, now deceased. The alleged breach of contract occurred in 2017. The Complaint was 23 13 filed on May 5, 2023. Doc. No. 1. Thus, a dismissal of the Complaint, even without prejudice, 24 2154 could in fact prejudice Plaintiffs by creating a potential statute of limitations bar to a re-filed 26 2175 action. 28 16 3. After filing the Complaint Plaintiff’s counsel retained an independent process server 17 who has made seven (7) separate attempts to serve Stokes spanning a period of thirty (30) days 18 in June and July 2023. As detailed in the Return of Non-Service declaration from process server 19 Anthony Spada of Legal Process Service & Investigations, LLC, attached as Exhibit A hereto. 20 A process server has gone to a residence (at 11405 Sandstone Ridge Dr., Las Vegas, NV 21 89135) listed as being owned by Stokes and another person (presumably his spouse) on five 22 different days; it is in a gated community with a security guard; one four occasions, there was 23 not answer, and on one occasion the security guard refused access. A process server also went 24 to Stokes’ registered address with the Nevada Bar (11700 W. Charleston Blvd., #170-543, Las 25 Vegas, NV 89135) on June 12, 2023, but it is not a law office; rather, it is a commercial mailbox 26 and shipping business. In addition, the process server also went to a second address used by 27 Stokes for his law practice (8965 S. Eastern Ave., Suite 382, Las Vegas, NV 89123); that is a 2 31 did not work for this firm, nor was Adam Stokes a client.” See Exhibit A. 4 2 4. Thus, despite repeated, diligent, and costly efforts to serve Stokes, Plaintiff has been 5 63 unable to do so, in large part because Stokes’ address with the Nevada Bar is a commercial 7 84 P.O. Box and he was not available at the address used by him in connection with his profession. 9 105 Plaintiffs have now sent to Stokes by overnight delivery to his residence address a Request for 11 6 Waiver of Service of Process, and they are sending a separate copy of a Request for Waiver to 12 137 the P.O. Box address on file with the Nevada Bar. Thus, Plaintiffs have made repeated good- 14 158 faith attempts to serve Stokes at a residential address and at two commercial addresses, 16 9 including the address on file with the Nevada Bar. Accordingly, Plaintiffs require additional 17 1 18 0 time to serve Stokes with the Summons and Complaint. See Exhibit A. 19 2101 5. This motion is filed within the 90-day service period. In any event, the Ninth Circuit 21 2122 has held that “Rule 4(m) explicitly permits a district court to grant an extension of time to serve 23 13 the complaint after” expiration of the 90-day period.” Efaw v. Williams,

, 1041 24 2154 (9th Cir. 2007). 26 2175 ARGUMENT 28 16 I. There is “good cause” to extend the deadline for service under Rule 4(m) because Stokes is aware of the lawsuit, the extension sought is reasonable, and 17 Plaintiffs would suffer severe dismissal by a dismissal. 18 Rule 4(m) of the Federal Rules of Civil Procedure expressly provides that a “court must 19 extend the time for service for an appropriate period” when a plaintiff shows good cause for not 20 effecting service on a defendant within 90 days. Fed. R. Civ. P. 4(m). Indeed, the Ninth Circuit 21 has explained that “Rule 4(m) provides two avenues for relief. The first is mandatory: the 22 district court must extend time for service upon a showing of good cause.” Lemoge v. United 23 24 States,

(9th Cir. 2009) (citing In re Sheehan,

(9th 25 Cir. 2001)). The second basis for an extension is discretionary; even if good cause were not 26 established the court may extend time for service upon a showing of excusable neglect.

27 Accord Moebius v. Carnevale, No. 221CV00970ARTVCF,

, at *1 (D. Nev. 2 July 7, 2022) (Traum, J.) (Rule 4(m) “mandates an extension of time for plaintiffs who show 31 4 good cause and authorizes an extension of time even in the absence of good cause where a 2 5 63 plaintiff demonstrates excusable neglect.”); Whitfield v. Nevada State Pers., No. 320CV00637 7 84 MMDWGC,

, at *2 (D. Nev. Jan. 18, 2022) (Du, C.J.) (“If the plaintiff has 9 105 failed to substantially comply with Rule 4(m), there are ‘two avenues for relief’ instead of 11 6 12 dismissal. First, ‘the district court must extend time for service upon a showing of good cause.’ 137 14 Second, if there is no good cause, ‘the district court may extend time for service upon a showing 158 16 of excusable neglect.’”). 9 17 18 Thus, “a plaintiff can preserve his original filing date for a complaint by satisfying one 10 19 2101 of two standards: good cause or excusable neglect.” Moebius,

, at *1. Stated 21 2122 differently: 23 21 43 “Good cause to avoid dismissal may be demonstrated by establishing, at 2154 minimum, excusable neglect.” “In addition to excusable neglect, a plaintiff 26 may be required to show the following factors to bring the excuse to the level 2175 of good cause: ‘(a) the party to be served personally received actual notice of 28 the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff 16 would be severely prejudiced if his complaint were dismissed.’” 17 Cabrera v. NaphCare, No. 319CV00200MMDWGC,

, at *2–3 (D. Nev. Jan. 18 10, 2022) (Cobb, Mag, J.), report and recommendation adopted sub nom. Cabrera v. Kocijanski, 19 No. 319CV00200MMDCSD,

(D. Nev. Mar. 18, 2022). “District courts have 20 broad discretion to extend time for service under Rule 4(m). Efaw,

. Applicable 21 here, moreover, the Ninth Circuit has explained that the “[e]xercise of discretion to extend time 22 to complete service is appropriate when, for example, a statute-of-limitations bar would operate 23 to prevent re-filing of the action. Lemoge,

(citing Efaw,

); 24 Crowley v. Bannister,

(9th Cir. 2013). That is the situation here, as the statute 25 of limitation could become a factor if there was a dismissal without prejudice and a new lawsuit 26 had to be filed. 27 Moreover, there would be no real prejudice to Defendant as he will have received the 2 31 Request for Waiver of Service with a copy of the Complaint, and he almost assuredly is aware of 4 2 the process server’s attempt to serve him with process. A copy of this Motion is being served to 5 63 an e-mail address formerly used by Stokes in connection with his law practice and also mailed to 7 84 his residence address. In addition, Plaintiffs attempted earlier in 2023 to commence a Nevada Bar 9 105 fee grievance procedure related to the issues in this action, and Plaintiffs believe Stokes was made 11 6 aware of that request (which the Bar declined to resolve without prejudice to any legal action 12 137 Plaintiffs might institute). Also, Plaintiffs have filed a FINRA arbitration against the broker- 14 158 dealer that referred the deceased Mrs. Rueda to Stokes and that was expressly mentioned in 16 9 Stokes’ fee contract with Mrs. Rueda, and that brokerage firm has filed documents in the 17 1 18 0 arbitration referring to this action having been filed. There will be no tangible prejudice to 19 2101 Defendant from the requested 60-day extension under Rule 4(m), but the prejudice to Plaintiffs 21 2122 of not granting the extension will be severe. 23 13 Here, Plaintiffs’ good faith is demonstrated by their prompt, diligent, and sustained efforts 24 2154 Defendant Stokes. The failure to serve him to date is attributable to a misimpression that his 26 2175 Nevada Bar registered address would be valid and other factors outside Plaintiffs’ control, 28 16 including Stokes’ use of professional addresses at which he is not available for service of process, 17 and security and unresponsiveness at his residence address. In addition, as noted Plaintiffs have 18 sent by FedEx® a waiver of service under Fed. R. Civ. P. 4(d). See Exhibit B hereto, Waiver of 19 Service to Stokes, and he has 30 days to respond to that request. In the meantime, Plaintiffs intend 20 to continue to perfect service and to engage investigators to attempt to locate and serve Stokes 21 with process. 22 The list below, supported by the statement of the process server attached as Exhibit A, 23 details multiple efforts to serve Stokes. As demonstrated below, Plaintiffs have, at significant 24 expense, engaged in a diligent and good faith effort to serve Defendant Stokes with the Summons 25 and Complaint: 26 27 2 31 Location: 11700 W. Charleston Blvd.,#170-543, Las Vegas, NV 89135 4 2 6/12/2023 5:58 PM Attempted service was made at the address of 11700 W. Charleston Blvd.,#170-543, 5 63 Las Vegas, NV 89135. This is a commercial address. The business tenant is Postal 7 84 Pros: a mailbox and shipping business. The Owner, Andrew (white, male, 45 y/o, 9 105 6'1", 250 lbs., brown hair, no glasses) stated that Adam D. Stokes did not work for 11 6 this business. 12 137 Location: 11405 Sandstone Ridge Dr., Las Vegas, NV 89135 14 158 6/21/2023 3:42 PM Attempted service was made at the address of 11405 Sandstone Ridge Dr., Las 16 9 Vegas, NV 89135. This address is within an exclusive guard gated community. A 17 18 10 guard escort was received. The guard could not release information on previous or 19 2101 current occupants. Observed the window shades were closed. Observed front porch 21 2122 gate unlocked and open. Observed a video doorbell. No response was received at 23 13 the door. No activity was observed or heard. No vehicle was observed. The guard 24 2154 would not allow contact with the neighbors 26 2175 6/24/2023 12:24 PM Attempted service was made at the address of 11405 Sandstone Ridge Dr., Las 28 16 Vegas, NV 89135. This address is within an exclusive guard gated community. A 17 guard escort was received. The guard could not release information on previous or 18 current occupants. Observed the window shades were closed. Observed front porch 19 gate unlocked and open. Observed a video doorbell. No response was received at 20 the door. No activity was observed or heard. No vehicle was observed. The guard 21 would not allow contact with the neighbors. 22 6/27/2023 7:38 PM Attempted service was made at the address of 11405 Sandstone Ridge Dr., Las 23 Vegas, NV 89135. This address is within an exclusive guard gated community. A 24 guard escort was received. The guard could not release information on previous or 25 current occupants. Observed the window shades were closed. Observed front porch 26 gate unlocked and open. Observed a video doorbell. No response was received at 27 the door. No activity was observed or heard. No vehicle was observed. The guard 2 31 would not allow contact with the neighbors. 4 2 6/29/2023 7:02 AM Attempted service was made at the address of 11405 Sandstone Ridge Dr., Las 5 63 Vegas, NV 89135. This address is within an exclusive guard gated community. The 7 84 guard denied access at this time; no reason was provided. 9 105 7/1/2023 8:33 AM Attempted service was made at the address of 11405 Sandstone Ridge Dr., Las 11 6 Vegas, NV 89135. This address is within an exclusive guard gated community. A 12 137 guard escort was received. The guard could not release information on previous or 14 158 current occupants. Observed the window shades were closed. Observed front porch 16 9 gate unlocked and open. Observed a video doorbell. No response was received at 17 1 18 0 the door. No activity was observed or heard. No vehicle was observed. The guard 19 2101 would not allow contact with the neighbors. 21 2122 Location: 11700 W. Charleston Blvd.,#170-543, Las Vegas, NV 89135 23 13 7/11/2023 2:13 PM Attempted service was made at the address of 8965 S. Eastern Ave., Suite 382, Las 24 2154 Vegas, NV 89123. This is a commercial address. The business tenant is Reisman 26 2175 Sorokac Attorneys. Evan Warnoch (white, male, 35 y/o, 6'0", 240 lbs, brown hair, 28 16 no glasses), Accounting Administrator, stated that Adam Stokes did not work for 17 this firm, nor was Adam Stokes a client 18 Given the FedEx® delivery of a requested waiver of summons, the prior Bar grievance 19 filing, and the broker-dealer’s awareness of this suit, Stokes is almost certainly aware of the 20 lawsuit. Also, as noted, Plaintiffs have attempted to serve him through personal service at three 21 different locations and have conducted surveillance of his residence, further showing good cause 22 for an extension of time. Plaintiffs’ ongoing and diligent efforts to serve Stokes and Stokes’ 23 evasion of service to date support a finding of good cause for the requested extension of time. 24 Accordingly, the requested 60-day extension of time to serve the Summons and Complaint is 25 appropriate. 26 Plaintiffs submit that good cause exists mandating the requested extension. Even if, 27 however, the Court considered that that threshold were not met, the Court should grant an VLAD INV. LOTUV TU PUTO □□□ VV

] || action were dismissed given the potential limitations issue, which would result only in Stokes 2 || benefitting from his evasion of service. Plaintiffs thus respectfully request the Court, to the extent 3 || necessary, to consider the totality of the circumstances and Plaintiffs’ diligence in attempting 4 || service and to extend the time for service of process by 60 days. 5 CONCLUSION 6 For the foregoing reasons, Plaintiffs respectfully request that the Court: grant Plaintiffs’ 7 || Motion for Extension of Time to Serve Summons and Complaint and extend the time for service 8 || of process on Defendant Stokes for sixty (60) days from the date of the Court’s order. 9 || Dated: August 3, 2023 10 Respectfully submitted, = 1] VENABLE LLP 12 7 8 /s/ W. Barry Blum 13 W. BARRY BLUM geod Florida Bar No. 379301 aug | 100 SE 2nd Street, 44th Floor $42 45 Miami, FL 33131 ge Tel: 305.349.2339 16 [email protected] a 5 + (admitted pro hac vice) 17 Ss a ARI N. ROTHMAN 3 18 Nevada Bar No. 15806 19 600 Massachusetts Ave. NW 3 Washington, D.C. 20001 90 Tel: 202.344-4000 [email protected] 21 KAPLAN YOUNG 22 Kory L. Kaplan 23 10091 Park Run Drive, Suite 190 Las Vegas, NV 89145 4 ORDER Tel: 702.381.8888 [email protected] 25 IT ISSO ORDERED DATED: 8:27 pm, August 03, 2023 Attorneys for Plaintiffs a7 Guan la Aree \ BRENDA WEKSLER 28 UNITED STATES MAGISTRATE JUDGE

2 CERTIFICATE OF SERVICE 31 4 I HEREBY CERTIFY that a copy of the foregoing motion was filed via CM/ECF on 2 5 63 August 3, 2023, and was separately served via e-mail to [email protected] and mailed 7 84 to Adam Stokes, 11405 Sandstone Ridge Dr., Las Vegas, NV 89135. 9 105 11 6 12 /s/ W. Barry Blum 137 W. BARRY BLUM 14 158 16 9 17 18 10 19 2101 21 2122 23 13 24 2154 26 2175 28 16 17 18 19 20 21 22 23 24 25 26 27