Senn v. Smith

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LINDA SENN, 3:18-cv-01814-BR

Plaintiff, OPINION AND ORDER

v.

CITY OF PORTLAND; LARRY

GRAHAM; JEFFREY MCDANIEL;

MULTNOMAH COUNTY; KYLE SMITH;

and JOHN DOES 1-10,

Defendants.

CRYSTAL MALONEY

165 Court Street #156

Brooklyn, NY 11201

(541) 646-5130

JUAN C. CHAVEZ

P.O. Box 5248

Portland, OR 97208

(503) 944-2270, ext. 212

Attorneys for Plaintiff

TRACY REEVE

Portland City Attorney

ROBERT T. YAMACHIKA

Senior Deputy City Attorney

Portland City Attorney's Office

1221 S.W. Fourth Avenue, Room 430

Portland, OR 97204

(503) 823-4047

Attorneys for Defendants City of Portland, Larry Graham,

and Jeffrey McDaniel

1 – OPINION AND ORDER

BROWN, Senior Judge.

This matter comes before the Court on the Motion (#28) to

Dismiss filed by Defendants Larry Graham and Jeffrey McDaniel.

The Court concludes the record is sufficiently developed, and,

therefore, oral argument is not necessary to resolve Defendants'

Motion.

For the reasons that follow, the Court GRANTS Defendants'

Motion.

PROCEDURAL BACKGROUND

On October 12, 2018, Plaintiff Linda Senn filed a Complaint

(#1) against Defendants City of Portland, Graham, and McDaniel

pursuant to 42 U.S.C. § 1983 for injuries she allegedly

sustained during an incident on October 12, 2016, at Portland

City Hall.

On November 8, 2018, the Clerk's Office electronically

issued Summons for the City, Graham, and McDaniel. Dkt. #7.

On November 9, 2018, the City was served with the Summons

and Complaint. Although a proof of service has not been filed

with the court, the City concedes it has been properly served.

Decl. of Robert Yamachika (#9).

On January 9, 2019, Plaintiff filed a Motion (#11) for

2 – OPINION AND ORDER

Leave to File Amended Complaint to add Multnomah County and Kyle

Smith as additional defendants. On the same day Plaintiff filed

her Amended Complaint (#12).

On January 10, 2019, the Court granted Plaintiff's Motion

to amend and also directed Plaintiff to file proofs of service

of the Amended Complaint. Order (#14).

On February 8, 2019, the City filed its Answer (#20) to

Plaintiff's Amended Complaint.

On April 4, 2019, Plaintiff submitted an Amended Proposed

Summons (#21) for Graham, which the Court issued on April 5,

2019 (Dkt. #22).

On April 11, 2019, the Court noted Plaintiff had failed to

file proofs of service of the Amended Complaint as to any

Defendant and directed Plaintiff to file such proofs of service

no later than April 18, 2019. Order (#23).

On April 23, 2019, Plaintiff filed a Certificate of Service

(#24) showing service on "Jeffrey McDanie" (sic) on April 8,

2019, by serving Alli Chasteen.

Although Plaintiff has not filed a proof of service, Graham

concedes he was served on April 26, 2019. Defs.' Mot. (#28)

at 3.

On May 5, 2019, Graham and McDaniel filed a Motion to

3 – OPINION AND ORDER

Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5)

and (6). They contend Plaintiff did not timely serve them with

Summons and Complaint and that Plaintiff's action is barred by

the applicable statute of limitations, and, therefore, Plaintiff

fails to state a claim against them.

On July 1, 2019, the Court took the Motion under

advisement.

STANDARDS

Although injury claims under § 1983 claims are federal

causes of action, such claims are governed by the statute of

limitations for personal-injury torts of the state in which the

injury occurred. Wallace v. Kato, 549 U.S. 384, 387 (2007).

Oregon's statute of limitations for personal-injury actions is

two years from the date of the injury. Or. Rev. Stats.

§ 12.110(1).

An action is commenced in federal court for purposes of the

statute of limitations when the complaint is filed. Fed. R.

Civ. P. 3. See also Sain v. City of Bend, 309 F.3d 1134, 1138

(9th Cir. 2002). After an action is commenced, the plaintiff

must serve the complaint on the defendant within 90 days. Fed.

R. Civ. P. 4(m). Rule 4(m) provides:

4 – OPINION AND ORDER

If a defendant is not served within 90 days after the

complaint is filed, the court—on motion or on its own

motion after notice to plaintiff—must dismiss the

action without prejudice against that defendant or

order that service be made within a specific time.

But if the plaintiff shows good cause for the failure,

the court must extend the time for service for an

appropriate period.

DISCUSSION

As noted, Graham and McDaniel contend Plaintiff did not

timely serve them with Summons and Complaint and Plaintiff's

action is now barred by the statute of limitations.

I. Plaintiff's action was timely commenced.

Plaintiff filed her Complaint on October 12, 2018, exactly

two years from the date of the incident, and, therefore, the

action was timely commenced under Oregon Revised Statutes

§ 12.110(1).

II. Graham and McDaniel were not timely served.

As noted, Graham and McDaniel contend they were not timely

served, and Plaintiff's action is, therefore, barred against

them.

A. Service on Graham and McDaniel

Pursuant to Rule 4(m), the 90-day deadline to serve the

Summons and Complaint on Graham and McDaniel was January 10,

2019. Graham was served on April 26, 2019, which is 196 days

5 – OPINION AND ORDER

after the filing of the Complaint. McDaniel was served on

April 8, 2019, which is 178 days after the filing of the

Complaint.

Accordingly, Graham and McDaniel were not served within 90

days of the filing of the Complaint as required by Rule 4(m).

B. Plaintiff has not shown good cause or excusable

neglect for the failure to serve Graham and McDaniel.

Plaintiff contends the delay in service should be excused

for good cause or excusable neglect. Moreover, Plaintiff

contends Graham and McDaniel have not shown they have been

prejudiced by the late service.

1. Standards

"Rule 4(m)'s deadline for service is designed to

force parties and their attorneys to be diligent in prosecuting

their cause of action." Fimbres v. United States, 833 F.2d 138,

139 (9th Cir.1987). See also Golf Sav. Bank v. Walsh, No. 09-

973, 2010 WL 3222112, at *2 (D. Or. Aug. 13, 2010). When a

plaintiff fails to serve a defendant within the time limit, the

action is subject to dismissal. Fed. R. Civ. P. 4(m).

For a plaintiff who does not comply with the

service deadline, Rule 4(m) provides two avenues for relief.

"The first is mandatory: the court must extend time for service

upon a showing of good cause. The second is discretionary: if

6 – OPINION AND ORDER

good cause is not established, the court may extend time for

service upon a showing of excusable neglect." Lemoge v. Unites

States, 587 F.3d 1188, 1198 (9th Cir. 2009)(citations omitted).

Good cause to avoid dismissal may be

demonstrated by establishing, at minimum,

excusable neglect. In addition to excusable

neglect, a plaintiff may be required to show

the following factors to bring the excuse to

a level of good cause: "(a) the party to be

served personally received actual notice of

the lawsuit; (b) the defendant would suffer

no prejudice; and (c) plaintiff would be

severely prejudice if his complaint were

dismissed."

Id. n.3 (quoting Boudette v. Barnette, 923 F.2d 754, 756 (9th

Cir. 1991)).

Excusable neglect is an equitable determination

based on four factors: "(1) the danger of prejudice to the

opposing party, (2) the length of delay and its potential impact

on the proceedings, (3) the reason for the delay, and (4)

whether the movant acted in good faith." Bateman v. U.S. Postal

Svc., 231 F.3d 1220, 1223-24 (9th Cir. 2000).

2. Analysis

Plaintiff contends she served the City Attorney's

Office with Summons and Complaint for all three Defendants and

"presumed" the City Attorney's Office had accepted service for

Graham and McDaniel individually. Plaintiff also asserts she

7 – OPINION AND ORDER

was unable to locate either Graham or McDaniel in order to

timely serve them. Finally, Plaintiff argues the City, Graham,

and McDaniel share a common defense deriving from common facts,

and Graham and McDaniel will be subject only to "de minimis"

prejudice by the delay in service.

Graham and McDaniel, however, contend Plaintiff

has not shown good cause or excusable neglect. They assert

Plaintiff did not request a waiver of service for any of the

Defendants, and counsel for the City specifically told

Plaintiff's counsel that he represented only the City. In

addition, Plaintiff was told McDaniel could be served through

the Portland Police Bureau Court Coordinator and that Graham had

retired from the Portland Police Bureau, moved out of state, and

would have to be served where he resided.

Plaintiff's presumption that the City Attorney

had accepted service on behalf of Graham and McDaniel was

erroneously based on his past experience with the City in other

cases where the City Attorney had accepted service on behalf of

individual defendants. While this mistaken assumption explains

counsel's state of mind, it does not constitute good cause to

excuse the failure to serve Graham or McDaniel individually and

timely under these circumstances. In addition, the Court notes

8 – OPINION AND ORDER

the City requested two extensions of time to file an Answer in

this case, and those requests were made only on behalf of the

City and not any other defendant. This should have served to

signal Plaintiff's counsel that the City Attorney's Office was

distinguishing between the City and the individual Defendants.

Plaintiff does not offer any evidence as to why

she failed to serve McDaniel timely through the Portland Police

Bureau Court Coordinator. Moreover, Plaintiff does not contend

her failure to serve Graham or McDaniel timely was based on

confusion about service, a calendaring mistake, or any factors

beyond her control that prevented service. In addition,

Plaintiff did not request an extension of time to serve Graham

or McDaniel even though the Court specifically drew attention to

the service issue when it set a deadline for filing proofs of

service. It was not until April 8, 2019, long after the

deadline to serve the individual Defendants that service on

McDaniel was finally accomplished, and the proof of service was

not filed until April 24, 2019.

The record also reflects the following: On

February 8, 2019, the City Attorney filed an Answer on behalf of

the City only; on April 4, 2019, Plaintiff requested the Clerk

to issue an amended summons with an out-of-state address for

9 – OPINION AND ORDER

Graham in order to serve him; on April 11, 2019, the Court

directed Plaintiff to file proofs of service by April 18, 2019,

and advised Plaintiff that failure to file proofs of service

could result in dismissal of her case; and on April 23, 2019,

which was after the deadline set by the Court, Plaintiff filed a

proof of service that was for McDaniel only.

Finally, the Court notes Plaintiff does not point

to any evidence that Graham or McDaniel had actual notice of her

lawsuit before the time they were ultimately served.

Plaintiff's argument that Graham and McDaniel will not be

prejudiced by the delay in service because they will not be

responsible for paying any settlement or judgment if they are

found to be liable is irrelevant to the issue of good cause or

excusable neglect for failure to serve them timely.

The Federal Rules of Civil Procedure contemplate

proper and timely notice to a defendant in order to promote the

timely resolution of disputes. See Fed. R. Civ. P. 1 (requiring

the Rules to "be construed, administered, and employed . . . to

secure the just, speedy, and inexpensive determination of every

action"). See also Fimbres, 833 F.2d at 139 ("Rule 4(m)'s

deadline for service is designed to force parties and their

attorneys to be diligent in prosecuting their cause of

10 – OPINION AND ORDER

action.").

On this record the Court concludes Plaintiff has

failed to show good cause or excusable neglect for failing to

serve Graham and McDaniel within the time prescribed by Rule

4(m).

III. Plaintiff's claims against Graham and McDaniel are

dismissed with prejudice.

As noted, Rule 4(m) states the court "must dismiss the

action without prejudice" or direct service to be made within a

specified time when service is not accomplished in 90 days. The

Court also may extend the deadline for service if the plaintiff

demonstrates good cause or excusable neglect.

For the reasons indicated, the Court concludes Plaintiff

has failed to demonstrate good cause or excusable neglect. The

Court, therefore, does not see any basis to extend the time for

service.

Inasmuch as the statutory period under Oregon law as to

Plaintiff's claims has expired against Graham and McDaniel the

Court concludes Plaintiff's claims against Graham and McDaniel

are now barred by the applicable statute of limitations.

Accordingly, the Court DISMISSES with prejudice Plaintiff's

claims against Defendants Graham and McDaniel.

11 – OPINION AND ORDER

CONCLUSION

For these reasons, the Court GRANTS Defendants' Motion

(#28) to Dismiss and DISMISSES with prejudice Plaintiff's First

Amended Complaint as to Defendants Graham and McDaniel.

The Court DIRECTS the parties to confer and to file no

later than August 28, 2019, a joint proposed case-management

schedule. The Clerk will set a Rule 16 Conference to occur

shortly thereafter.

IT IS SO ORDERED.

DATED this 6th day of August, 2019.

/s/ Anna J. Brown

___________________________________

ANNA J. BROWN

United States Senior District Judge

12 – OPINION AND ORDER