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Oliver v. Gusman

United States District Court, E.D. Louisiana

September 13, 2019

STEVEN OLIVER
v.
MARLIN GUSMAN, ET AL.

         SECTION: “J” (4)

          ORDER & REASONS

          CARL J. BARBIER UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion for Review of Magistrate Judge's Decision (Rec. Doc. 55), which challenges the Magistrate Judge's Order[1] denying Plaintiff's motion to enlarge time to serve Defendants Thomas Sutherland, Michael Lee, and Jamie Massey.[2] Having considered the motion and memorandum, the record, and the applicable law, the Court finds that the motion should be GRANTED.

         FACTS AND PROCEDURAL BACKGROUND

         Plaintiff filed his original complaint on August 16, 2018, naming, inter alia, Sutherland, Lee, and Massey as Defendants.[3] He filed his First Amended Complaint (“FAC”) on November 5, 2018, before any Defendant had answered.[4] Plaintiff then served Defendant Massey on November 6, 2018, [5] and Defendants Lee and Sutherland on November 8, 2018.[6] This service took place within the ninety-day time limit established by Rule 4(m); however, the record is unclear whether he served them with his original complaint or FAC.

         The allegations against these three Defendants in the FAC are substantively identical to those in the original complaint: while being transported in a prison van, Defendant Massey escaped from his restraints and attacked Plaintiff and another inmate for twenty-two minutes while Defendants Lee and Sutherland, the Orleans Parish Sheriff's Office deputies who were transporting the prisoners, failed to intervene to protect Plaintiff and later failed to report the attack to their superiors.[7]

         On February 4, 2019, Plaintiff sought the Court's leave to file a Second Amended Complaint (“SAC”).[8] The Court granted leave, [9] and Plaintiff's SAC was filed into the record.[10] The allegations in the SAC against these three Defendants are substantively identical to those raised in Plaintiff's original complaint and FAC.[11]

         On May 29, 2019, the Magistrate Judge ordered Plaintiff to show cause for why he failed to timely serve these three Defendants with the SAC.[12] That same day, Plaintiff submitted summonses for issuance and then served Defendants Lee and Sutherland on June 1, 2019, and Defendant Massey on June 6, 2019.[13] The Magistrate Judge deemed the order to show cause satisfied but denied Plaintiff's request for an extension of time for service:

To the extent [Plaintiff] requests in the response that, without a properly filed motion, the Court grant nunc pro tunc an extension of time for service to June 6, 2019, to match the completion of the untimely service, the Court declines to do so. Such a retroactive ruling by the Court could prejudice a defendant's ability to challenge the service or assert a defense. There is no doubt that this recent service was not timely, no extension was requested before the Show Cause Order was issued, and service was only made after prompting by the Show Cause Order. The Court declines to provide further excuse for the untimely service in that manner, although the Court elects at this time not to penalize the plaintiff for error attributable to his counsel.[14]

         Plaintiff promptly filed a motion to enlarge time to serve Defendants on June 19, 2019.[15] The Magistrate Judge denied the request on July 17, 2019:

This request is repetitive of the relief sought in [Plaintiff's] response [to] the Court's Show Cause Order and is denied for the same reasons. . . . But for this Court's prompting, service would not have been effectuated when it was, and this case would remain in a limbo state waiting for the plaintiff to properly prosecute as to all named defendants, which would have caused further delay in the Court's attempt to get this matter to a preliminary conference under Rule 16. As the Court has already ruled, counsel's “inadvertence and negligence” is not per se demonstrated good cause for the failure to serve, yet the Court has chosen not to penalize the plaintiff with a recommendation of dismissal based on error attributable to his counsel. The Court has already denied [Plaintiff's] request that the Court grant nunc pro tunc an extension of time for service to June 6, 2019, to match the completion of the untimely service made on these defendants. The Court is not now convinced to change that ruling.[16]

         Plaintiff then filed the instant motion for review of the Magistrate Judge's decision. Defendants Massey, Lee, and Sutherland have not answered either the original complaint or the SAC and have not appeared in this action.

         LEGAL STANDARD

         Rule 4(m) provides:

If a defendant is not timely served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the ...

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