United States District Court, D. Hawaii
ORDER DISMISSING ACTION WITH RESPECT TO THOMAS L.
Oki Mollway, United States District Judge
Everett Spears asserts that he was held in prison 73 days
longer than he should have been. On April 24, 2012, Spears
filed the Complaint in this matter, asserting claims under 42
U.S.C. § 1983 and under state law against the State of
Hawaii Department of Public Safety and its employees, Tani
Dydasco and Thomas L. Read. See ECF No. 1.
See ECF No. 1. On May 31, 2012, this court dismissed
all of Spears's claims except for the damage claims
asserted against Dydasco and Read in their individual
capacities. See ECF No. 13. On November 8, 2017, the
court dismissed the remaining claims with respect to Dydasco
and issued an order to show cause why the action should not
be dismissed with respect to Read pursuant to Rule 4(m) of
the Federal Rules of Civil Procedure. See ECF No.
111. On November 17, 2017, Spears responded to the order to
show cause, asking for leave to serve Read. See ECF
No. 113. Because Spears has failed to demonstrate good cause
for his failure to timely serve Read, and because the court
declines to exercise its discretion to allow service under
the circumstances presented, the court dismisses the action
with respect to Read.
4(m) of the Federal Rules of Civil Procedure governs the
issue of timely service, providing in relevant part,
If a defendant is not 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 failure, the court must extend the time for
service for an appropriate period.
(m) contains mandatory and discretionary components. Rule
4(m) requires a district court to grant an extension of time
to serve a defendant when the plaintiff shows good cause for
the delay. See Efaw v. Williams, 473 F.3d 1038, 1040
(9th Cir. 2007); see also in re Sheehan,
253 F.3d 507, 512 (9th Cir. 2001). “Good
cause” for the delay means “at a minimum . . .
excusable neglect.” In re Sheehan, 253 F.3d at
512 (alterations, quotation marks, and citation omitted).
lacks “good cause” for the delay in serving Read.
Read has not been served even though the Complaint was filed
more than five years ago. Although this case was stayed at
Spear's request, Spears acknowledges that he has delayed
service for 23 months while the case was not stayed.
See ECF No. 113, PageID # 835 (“There is only
a 23 month delay excluding the time of the 4 year Court
approved stay.”). As noted in the order to show cause,
Spears had previously told the court that he had been unable
to serve Read because he did not know Read's address, but
had conceded that he had not sought Read's address
through discovery. In counsel's declaration, ECF No.
113-1, she states that she had previously requested
Read's address but was not told what the address was. But
Spear's counsel does not indicate when she asked for the
address. If, for example, she asked for the address in 2012
but failed to follow up thereafter, Spears can hardly argue
that that lack of diligence shows “good cause”
for the delay.
failure to serve Read may have been because he believed Read
was no longer part of this action. In a June 16, 2017, status
report, for example, Spears stated, “Thomas L. Reed
[sic] and the Dpt. Of Public Safety are no longer parties in
this law suit as the Court dismissed them in Summary Judgment
Order dated 6-19-13.” ECF No. 91, PageID # 635. On
August 9, 2017, Spears similarly stated, “The persons
involved who did not release him included Tani Dydasco, the
remaining Defendant.” ECF No. 97, PageID # 711. This
misunderstanding with respect to whether Read was still a
potential defendant was not justified by the record and
provides further grounds for a finding that Spears lacked
“good cause” for the delay in serving Read.
“good cause” is lacking for a delay in serving a
defendant, Rule 4(m) permits a district court to exercise
“broad discretion” to grant an extension of time
to serve the defendant. See Williams, 473 F.3d at
1040; see also In re Sheehan, 253 F.3d at 513 (when
good cause is lacking, a district court has the discretion
“to extend the time for service or to dismiss the
action without prejudice”). In exercising its
“broad discretion, ” a district court may
consider factors “like a statute of limitations bar,
prejudice to the defendant, actual notice of a lawsuit, and
eventual service.” Williams, 473 F.3d at 1041
(quotation marks and citation omitted). This court declines
to exercise its discretion to allow service as to Read under
Spears contends that this court should exercise its
discretion and allow service because Read likely had notice
of this action, that contention is unconvincing. At most, the
record reflects that the State of Hawaii moved to dismiss the
claims against Read in his official capacity, as those were
claims against the State of Hawaii. Nothing in the record
establishes that Read actually had notice of this action. Nor
does the record demonstrate that Read, who had been sued in
similar cases, “absconded and left the State of
Hawaii.” ECF No. 113, PageID # 834. The record simply
establishes that Read “moved to Utah.”
See ECF No. 113-2, PageID # 839.
factor best supporting the granting of leave for Spears to
serve Read at this late juncture is that the applicable
limitations periods for Spears's claims has likely run.
Seven years have passed since Read's alleged conduct of
sending a letter to Spears telling Spears that the Department
of Public Safety would be asking a judge for clarification as
to the pretrial credit that Spears was entitled to, as well
as sending such a letter to the judge. This length of time
actually weighs against allowing late service, as Read is
likely to be prejudiced by the fading of memories of the
events is issue. This delay was caused, at least in part, by
Spears's failure to ask for Read's address or to
follow up on any request made. Given the age of this case and
Spears's lack of diligence is seeking to serve Read, the
court declines to exercise its discretion and allow service.
court notes that, even if it were to allow service, that
exercise would likely be futile. For the reasons set forth in
this court's order of November 8, 2017, Read would likely
be immune from the claims asserted. That factor also supports
this court's refusal to exercise its discretion to allow
service of Read.