Emanuel v. Collins

1 Rene L. Valladares Federal Public Defender Nevada State Bar No. 11479 *Ryan Norwood Assistant Federal Public Defender New Hampshire Bar No. 15604 [email protected] *Amy B. Cleary Ohio State Bar No. 0068425 [email protected] 411 E. Bonneville Ave., Ste. 250 Las Vegas, Nevada 89101 (702) 388-6577 *Attorneys for Plaintiff Troy Emanuel, Jr. 12 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA Troy Emanuel, Jr., Plaintiff, Case No. 3:20-cv-00566-RCJ-CLB v. Order Granting Third Joint Stipulation to Extend Service of Collin, et al., Process Date Defendants.

The parties stipulate that counsel for Plaintiff Troy Emanuel, Jr., shall have an additional 30 days, or until February 2, 2024, to serve Defendant Brandon Stubbs with a summons, the amended complaint, and the order granting the motion to amend the complaint. This is the third stipulation requesting additional time to make service on Defendant Stubbs through alternative means.

The parties enter this stipulation under Fed. R. Civ. P. 4(m) in good faith and for good cause based on the following.

1 On September 21, 2023, this Court ordered that service of the summons, the amended complaint (ECF No. 139), and the order granting the motion to amend the complaint (ECF No. 129), be served on Defendant Brandon Stubbs by November 20, 2023. ECF No. 158. However, given Mr. “Emanuel’s pro se status and the issues with service,” the Court directed the Clerk to issue a summons for Defendant and Stubbs and also directed the U.S. Marshal to serve the summons and above-listed documents on him. ECF No. 158. Unfortunately, the U.S. Marsal could not perfect service on Defendant Stubbs. ECF No. 166.

9 Though Defendant Stubbs’ home address remains under seal (ECF No. 158), Mr. Emanuel’s counsel believed they located Stubbs’ home address and obtained a two-week extension of time from the Court to perfect service through a process server. ECF Nos. 174, 175. Though attempts to serve Defendant Stubbs were made during that two-week period, additional time is necessary to perfect service.

14 The parties then stipulated, with the Court’s permission, to continue the service deadline for Stubbs until January 3, 2024, to allow Mr. Emanuel additional time to perfect service. ECF Nos. 176, 177. Since then, Mr. Emanuel has diligently attempted service with the assistance of a retained process server. The process server has attempted service at Stubbs’ home in Texas and contacted his wife. The process server has also determined Stubbs is currently employed by the Texas Department of Criminal Justice (TDCJ). The process service spoke with the TDCJ Warden’s Assistant to attempt to perfect service at TDCJ; however, TDCJ’s Warden has elected not to permit service at TDCJ. An FPD investigator has also emailed Stubbs in an effort to perfect service but Stubbs has not responded. For these reasons, Mr. Emanuel’s counsel believe that Stubbs is aware of this lawsuit and purposely avoiding service.

26 An extension of the time for service is thus requested for good cause. See Federal Rule of Civil Procedure Rule 4(m); Lemoge v. United States, 587 F.3d 1188, 1] | 1198 (9th Cir. 2009) (Rule4(m) establishes a “mandatory” rule that the “district court must extend time for service upon a showing of good cause”). The parties submit good cause exists here to extend the time for service on Defendant Stubbs, 4|| including: (1) Mr. Emanuel’s status as an indigent plaintiff; (2) the failed attempt at service on Defendant Stubbs by the U.S. Marshal; (3) the failed attempts by the 6|| U.S. Marshals, the FPD, and Mr. Emanuel’s process server to serve Stubbs at his 7|| home address and place of employment; (4) Stubbs’ apparent purposeful avoidance 8| | of service; and (5) the need for Mr. Emanuel’s counsel to explore alternative 9|| methods of service. The parties therefore stipulate to extend the service date on 10| | Defendant Stubbs for 30 days, until February 2, 2024. See Fed. R. Civ. P. 4(m); Lemoge, 587 F.3d. at 1198.

12 Dated January 3, 2024.

Aaron D. Ford Rene L. Valladares Attorney General Federal Public Defender s/ Andrew C. Nelson s/ Ryan Norwood ‘Andrew C. Nel Roan Nomen nerew Netson Ryan Norwood 17 Deputy Attorney General Assistant Federal Public Defender 19 s/ Amy B. Cleary Amy B. Cleary 90 Assistant Federal Public Defender 21 ORDER 22 Accordingly, Plaintiff shall have until February 2, 2024 to effectuate service on Defendant Stubbs. No further extensions will be granted absent extraordinary 23 circumstances.

24|) IT IS SO ORDERED.

25 Dated: January 3, 2024. ‘ 27 UNITED STATES\MAGISTRATE JUDGE