ORDER DENYING DEFENDANTS' MOTION TO DISMISS WITHOUT PREJUDICE; Doc. No. 54. DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF SECOND AMENDED COMPLAINT PURSUANT TO Fed.R.Civ.P. 4(c)(3) & 28 U.S.C. § 1915(d)
MICHAEL M. ANELLO, District Judge.
Defendants United States Border Patrol Agents John Harris, Jon P. Rauterkus, Justin W. Gloyer (erroneously identified as Justin W. Glover), and Charles C. Loy (erroneously identified as Charles C. Coy) (collectively "Defendants") move to dismiss this action pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5) for lack of personal jurisdiction and insufficient service of process. See Doc. No. 54. Plaintiff David Harrera-Roman ("Plaintiff") failed to file a timely response and the Court took the matter under submission without a hearing in accordance with Civil Local Rule 7.1.d.1. See Doc. No. 55. Thereafter, Plaintiff filed a "Request for Judicial Notice, " in which he asserts that he did not file a response to the pending motion to dismiss because he was not served with the motion. See Doc. No. 56. For the reasons set forth below, the Court DENIES Defendants' motion without prejudice and DIRECTS the United States Marshal to effect service of Plaintiff's Second Amended Complaint.
On April 20, 2011, Plaintiff, an inmate currently incarcerated at the United States Penitentiary in Tucson, Arizona, and proceeding pro se and in forma pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1. The Court liberally construed Plaintiff's complaint as being brought pursuant to Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971). See Doc. No. 9. On August 8, 2011, Plaintiff filed a First Amended Complaint ("FAC"). See Doc. No. 10. The Court found Plaintiff's claims sufficiently pleaded to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2), 1915A(b), and directed the United States Marshal to effect service of the FAC. See Doc. Nos. 12, 17.
On May 7, 2012, Plaintiff filed a motion to amend his complaint and a request for a status update. See Doc. No. 29. On June 18, 2012, Defendants filed a response to Plaintiff's motion, which included a request to dismiss Plaintiff's FAC pursuant to Federal Rule of Civil Procedure 4(m) for improper service. See Doc. No. 32. On December 28, 2012, Plaintiff filed a Second Amended Complaint ("SAC"). See Doc. No. 46. On March 11, 2013, the Court ordered Defendants to answer or otherwise respond to Plaintiff's SAC. See Doc. No. 51. Defendants now move to dismiss the SAC. See Doc. No. 54. Defendants argue that Plaintiff never properly served the FAC and has not attempted service of the SAC. As such, Defendants argue that the Court lacks personal jurisdiction over them and the action should be dismissed.
Because Plaintiff is proceeding in forma pauperis in this case, as noted above, he is entitled to have service effected by the United States Marshal with respect to the SAC. See Fed.R.Civ.P. 4(c)(2). However, it appears that a summons did not issue on the SAC, nor did Plaintiff receive an "IFP Package" after the SAC was filed. As such, Plaintiff, who is an incarcerated individual, has had no means by which to serve Defendants with the SAC.
Defendants are correct that Plaintiff's time for serving the SAC expired on April 29, 2013. See Fed.R.Civ.P. 4(m) (service within 120 days after complaint is filed). However, where a delay in service is attributable to the court clerk, such as is the case here, such delay constitutes "good cause" to avoid dismissal. Puett v. Blandford, 912 F.2d 270, 273 (9th Cir. 1990) ("[P]laintiff should not be penalized by having his or her action dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform the duties required of each of them under 28 U.S.C. § 1915(c) and Rule 4 of the Federal Rules of Civil Procedure."); see also, Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). "The duty of the court to direct service and the duty of the appointed server to accomplish service through reasonable efforts is not discretionary. In cases like this, then, service is inevitable... The only question is how long that service will take and how much it will cost." Lieberman v. Walker, 2007 U.S. Dist. LEXIS 4059, 1-2 (C.D. Ill. 2007).
Accordingly, dismissal of this action is not appropriate and Plaintiff is entitled to rely on the United States Marshal to effect personal service of the SAC upon Defendants. See Puett, 912 F.2d at 275.
Based on the foregoing, the Court DENIES Defendants' motion to dismiss without prejudice. The Court hereby INSTRUCTS the United States Attorney's Office to provide the United States Marshal, in a confidential memorandum, with the information necessary to personally serve Defendants.
Following the receipt of any available information for Defendants, the Court DIRECTS the United States Marshal to serve a copy of Plaintiff's Second Amended Complaint and summons upon Defendants pursuant to Federal Rule of Civil Procedure 4(i)(3). Defendants' addresses should not appear on the U.S. Marshal Form 285s.
The Court further DIRECTS the United States Marshal to serve the United States pursuant to Federal Rule of Civil Procedure 4(i)(1). All costs of service shall be advanced by the United States pursuant to the Court's Orders granting Plaintiff leave to proceed in forma pauperis and directing service ...