Fleming v. Las Vegas Metropolitan Police Department

1 MARGARET A. MCLETCHIE, Nevada Bar No. 10931 LEO S. WOLPERT, Nevada Bar No. 12658 | MCLETCHIE LAW GROUP, PLLC South 10” Street 3) | Las Vegas, NV 89101 Telephone: (702) 728-5300; Facsimile: (702) 425-8220 Email: [email protected] 5| | Counsel for Plaintiff William Fleming 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA WILLIAM FLEMING, an individual, Case No.: 2:23-cv-00177-RFB-EJY 10 Plaintiff, Vs. PLAINTIFF’S MOTION FOR 11 EXTENSION OF TIME TO LAS VEGAS METROPOLITAN POLICE SERVE DEFENDANT IZAYA DEPARTMENT, a Municipal Corporation;| HARRIS | OFFICER JAVON CHARLES, an individual; OFFICER TIMOTHY NYE, an individual; (THIRD REQUEST) 14| | OFFICER GABRIEL LEA, an individual; OFFICER CODY GRAY, an _ individual; OFFICER SUPREET KAUR, as an ~ 16| | individual; OFFICER HALEY ANDERSEN, as an individual SERGEANT JOHN 17|| JOHNSON, as an_ individual; CAPTAIN DORI KOREN, as an individual; OFFICER RICHARD PALACIOS, as an individual; 19|| OFFICER PATRICK WHEARTY, as an individual; OFFICER ANDREW WOOD, as 20) | an individual; OFFICER IZAYA HARRIS, as | 20 individual; OFFICER CHAD ROWLETT, as an individual; OFFICER RYAN FESLER, 22|| as an individual; OFFICER NICHOLAS PEREZ, as an individual; DOE OFFICERS V 23! | — X, individuals.

24 Defendants.

1 MEMORANDUM OF POINTS AND AUTHORITIES 2 Plaintiff William Fleming, by and through his counsel of record, hereby moves this 3| Court for an order extending the time in which to complete service of process upon Defendant 4| |Izaya Harris.

5 FRCP 4(m) mandates that, if a defendant is not served within 90 days after the 6| |complaint is filed, “the court—on motion or on its own after notice to the plaintiff—must 7| |dismiss the action without prejudice against that defendant or order that service be made 8] within a specified time.” 90 days after the operative complaint (ECF No. 40) was filed is March 13, 2024. The Court granted Plaintiff's Unopposed Motion to Extend the deadline to 10| |serve Defendants Izaya Harris, Chad Rowlett, Ryan Fesler, and Nicholas Perez. (ECF No. 11| |46.) Service was effectuated on Defendants Rowlett, Fesler, and Perez via their employer, 12} Defendant LVMPD, on March 18, 2024.

13 Since then, the Court granted Plaintiff's Unopposed Motion to Extend the Service 14| |Deadline for Defendant Izaya Harris, granting a 45-day extension of time (ECF No. 49) |making the current deadline to serve Defendant Harris May 3, 2024. However, efforts to |serve Defendant Harris have so far been unsuccessful. Although Plaintiff's counsel obtained 17| |his Nevada address and commissioned a process server to personally serve him, the server 18] |was unable to do so. This is because Defendant Harris moved to Maryland to participate in |}unknown professional training, where he will be staying until at least the end of 2024.

20| |Plaintiffs have obtained Defendant Harris’s Maryland address and have commissioned a 21) |process server to serve him in Maryland, but as of the current date, service has not yet been 22) |effectuated upon him.

23 FRCP 4(m) “requires a district court to grant an extension of time if good cause is 24) |shown and permits the district court to grant such an extension even absent good cause.”

25) | Williams v. Bellagio Hotel & Casino, No. 2:23-cv-00325-JAD-DJA, 2023 U.S. Dist. LEXIS 26| 157075, at *4 (D. Nev. Sep. 6, 2023) (quoting Mann v. American Airlines, 324 F.3d 1088, 27| |1090 n.2 (9th Cir. 2003)). Here, good cause exists for failure to effectuate service upon Mr. 1} |Harris. Specifically, Defendant Harris is no longer employed by Defendant LVMPD, which 2| |required.

3 Alternatively, Plaintiff demonstrates excusable neglect in failing to effectuate 4! |service. “District courts also ‘have broad discretion to extend time for service’ and should 5| | ‘consider factors like a statute of limitations bar, prejudice to the defendant, actual notice of 6| |a lawsuit, and eventual service.’” Williams, 2023 U.S. Dist. LEXIS 157075, at *4 (quoting 7| |Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007)).

8 Regardless, this Court should extend the deadline to effectuate service upon 9| | Defendant Harris by forty-five (45) days.

10 A. Good Cause Exists to Extend the Service Deadline.

11 ““Good cause to avoid dismissal may be demonstrated by establishing, at a 12] |minimum, excusable neglect,’ and may be supported by a further showing that ‘the party to 13] |be served personally received actual notice of the lawsuit,’ ‘the defendant would suffer no 14| prejudice,’ and ‘plaintiff would be severely prejudiced if his complaint were dismissed.’”

15| | Williams, 2023 U.S. Dist. LEXIS 157075, at *4 (quoting Lemoge v. United States, 587 F.3d 16] 1188, 1198 n.3 (9th Cir. 2009)).

17 As noted above, good cause exists here to extend the time for serving Defendant 18| |Harris because, once Plaintiff's counsel learned that Defendant Harris was no longer 19} }employed by Defendant LVMPD on March 18, 2024, Plaintiff's counsel attempted to 20| effectuate service on his local address. These attempts were unsuccessful, as Defendant 21) | Harris moved to Maryland to participate in unknown professional training. Plaintiffs’ counsel 22) |has contacted Defendant Harris via email and telephone to discuss acceptance and/or waiver 23| |of service. Plaintiffs’ counsel has also obtained Defendant Harris’s Maryland address and 24) |has commissioned a process server to serve him in Maryland. Plaintiffs’ counsel expects 25| |service to be effectuated upon Defendant Harris imminently.

26 Here, although Plaintiff cannot demonstrate that Defendant Harris has received 27| |notice of the lawsuit, he cannot demonstrate that he would suffer prejudice, as discovery has 28| |recently begun in this matter. Thus, Defendant Harris would have ample opportunity to obtain 1} |counsel and prepare for litigation. Plaintiff, by contrast, would be severely prejudiced by 2| |exclusion of Defendant Harris from this matter. Thus, good cause exists to extend the service 3} |deadline by forty-five (45) days.

4 B. Alternatively, Plaintiff Demonstrates Excusable Neglect and the Cour 5 Should Exercise Its Discretion to Extend the Service Deadline.

6 To determine whether excusable neglect has been shown under FRCP 4(m), the 7| |court must examine the following factors: “(1) the danger of prejudice to the opposing party; 8] |(2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for 9| the delay; and (4) whether the movant acted in good faith.” Bonham v. Daniels, No. 2:21-cv- 10} |01566-CDS-VCF, 2023 U.S. Dist. LEXIS 164172, at *6 (D. Nev. Sep. 14, 2023) (quoting | Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010)). Here, these factors 12] | weigh in favor of a finding of excusable neglect and granting a brief extension of the deadline 13] |to serve Defendant Harris.

14 Here, there is very little danger of prejudice to Defendant Harris, as little has 15] }occurred procedurally in this matter. Bonham, 2023 U.S. Dist. LEXIS 164172, at *6-7 16| | (finding excusable neglect where “little has occurred procedurally, so that potential prejudice 17| not significant”). Indeed, discovery has recently begun in this matter. For similar reasons, 18] |the length of this delay in service—a proposed forty-five days—would have little impact on 19} |judicial proceedings. Finally, Plaintiff is acting in good faith. Notably, the court “may extend 20| |time for service of process retroactively after the 90-day service period has expired.”

21) |Campbell v. Nev. Dep’t of Corr., No. 2:20-cv-00634-CDS-VCF, 2022 U.S. Dist. LEXIS 22| |189929, at *3 (D. Nev. Oct. 14, 2022) (citing Mann, 324 F.3d at 1090).

23 Finally, on May 3, 2024, Plaintiff’s counsel spoke with Defendants’ counsel, Jackie 24| |Nichols, who indicated Defendants would not oppose the instant request, which further 25| jevidences a lack of prejudice. Plaintiff's counsel appreciates Defendants’ counsel’s 26| |professional courtesy.

27 Therefore, Plaintiff respectfully moves for an extension of forty-five (45) days to 28| effectuate service on Defendant Izaya Harris. ] DATED this 3" day of May, 2024. /s/ Leo S. Wolpert 3 MARGARET A. MCLETCHIE, Nevada Bar No. 10931 4 LEO S. WOLPERT, Nevada Bar No. 12658 South Tenth Street 5 Las Vegas, NV 89101 Telephone: (702) 728-5300; Fax: (702) 425-8220 6 Email: [email protected] 7 Counsel for Plaintiff William Fleming 10 IT IS SO ORDERED.

12 Aros rob 13 U.S. MAGIST Jt E 14 Dated: May 3, 2024