United States District Court, D. New Mexico
ORDER DISMISSING DEFENDANTS SCOTT WIDES AND RUSSELL
LITTLE WITHOUT PREJUDICE
MATTER comes before the Court on two motions: (1) Defendant
Simon Property Group, Inc.'s (“SPG”) Motion
to Dismiss Defendants Scott Wides and Russell Little
(Doc. 78), filed March 5, 2018; and (2)
Plaintiffs' Response to Defendant SPG's Motion to
Dismiss Defendants Scott Wides and Russell Little, and
Plaintiffs' Motion for Extension of Time to Serve
Defendants Scott Wides and Russell Little, and Notice that
Briefing has not been Completed (Doc. 85), filed
March 28, 2018. Pursuant to 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73(b), the parties have consented to me serving
as the presiding judge and entering a final judgment. See
Docs. 7, 14, 15, 16. Having reviewed the parties'
submissions and all pertinent authority, the Court grants
Defendant's Motion and denies Plaintiffs' Motion.
filed their Complaint on January 5, 2016 in the Second
Judicial District Court of New Mexico, naming Cottonwood
Mall, SPG, and John Does as Defendants. Doc. 1-1 at
4. On March 24, 2016 Defendants SPG and Cottonwood Mall filed
a Notice of Removal to federal court. Doc. 1. Before
any Defendant filed an answer or responsive pleading,
Plaintiffs filed their First Amended Complaint, terminating
Cottonwood Mall as a defendant. Doc. 13. Defendant
SPG then filed an Answer and Amended Answer. Docs. 18,
19. On June 3, 2016, Plaintiffs filed an opposed Motion
for Leave of Court to File Second Amended Complaint (Doc.
26), which the Court granted in part on July 29, 2016,
allowing Plaintiffs leave to substitute Scott Wides and
Russell Little as the John Doe defendants (Doc. 35).
Plaintiffs filed their Second Amended Complaint on September
30, 2016, naming Wides and Little as defendants, in addition
to SPG. Doc. 40. Defendant SPG filed its Answer to
the Second Amended Complaint on October 11, 2016. Doc.
date, Plaintiffs have not served Defendants Wides and Little,
and Defendants Wides and Scott have not filed any responsive
pleading. Accordingly, Defendant SPG filed its Motion to
Dismiss Defendants Wides and Little on March 5, 2018.
Doc. 78. Plaintiffs requested and received an
extension from the Court until March 27, 2018 to file their
response (Doc. 83), noting that they were expecting
to receive supplemental discovery responses from Defendant
SPG needed for their response (Doc. 81). By March
28, 2018, Plaintiffs had not filed a response, so Defendant
SPG filed a Notice of Completion of Briefing. Doc.
84. Later that day, Plaintiffs filed their response as
part of a Motion for Extension of Time to Serve and Notice
that Briefing has not been Completed. Doc. 85.
Plaintiffs contend that the extension of time to respond to
the Motion to Dismiss was until “March 27, 2018 - one
week after Plaintiffs expect to receive supplemental
discovery from Defendant SPG . . . .” Doc. 85
at 2. They argue that because they did not receive the
supplemental responses from Defendant SPG by March 20, 2018
as anticipated, their response “is timely as it is
being filed within one week after Defendant SPG advised
Plaintiffs that it would not provide the supplemental
discovery . . . .” Id.
assuming that Plaintiffs did not receive the supplemental
discovery responses as expected, the Order granting an
extension of time to respond to the Motion to Dismiss gave a
deadline of March 27, 2018, not a deadline tethered to
Plaintiffs' receipt of supplemental discovery. When they
did not receive the supplemental discovery on March 20, 2018,
as they were expecting, Plaintiffs had every opportunity to
request a further extension. But they did not, and instead
did not file a timely response. “The failure of a party
to file and serve a response in opposition to a motion within
the time prescribed for doing so constitutes consent to the
grant the motion.” D.N.M.LR-Civ 7.1(b). However, the
Court will overlook that deficiency and decide this issue on
the merits. See, e.g., Wiatt v. State Farm Ins. Co.,
No. CIV 07-0526 JB/ KBM, 2008 WL 2229631, at * 2 (D.N.M. Mar.
initial matter, Plaintiffs argue that “Defendant SPG
has cited no authority in its motion to dismiss to establish
standing to challenge service on behalf of another
defendant.” Doc. 85 at 3. Regardless, a court
can sua sponte raise the issue of service.
See Fed. R. Civ. P. 4(m). As such, this Court will,
again, proceed to the merits.
all cases removed from any State court to any district court
of the United States in which one or more of the defendants
has not been served with process . . . prior to removal, such
process or service may be completed . . . in the same manner
as in cases originally filed in such district court.”
28 U.S.C. § 1448. Accordingly, Federal Rule of Civil
Procedure 4(m) provides in 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.
this standard, “the plaintiff is entitled to a
mandatory extension of time if the plaintiff can demonstrate
good cause for failing to timely effect service.”
Martinez-Jones v. Dulce Indep. Schools, No.
CIV 07-0703 JB/WDS, 2008 WL 2229457, at *3 (D.N.M. Mar. 14,
2008) (citing Espinoza v. United States, 52 F.3d
838, 841 (10th Cir. 1995)).
if a plaintiff does not show good cause for failure to serve,
the court still has discretion to extend the time to allow
service or it can dismiss the case without prejudice.
Espinoza, 52 F.3d at 840-41.
Plaintiffs have not served Defendants Wides and Little at
all, let alone within 90 days since they filed the Second
Amended Complaint on September 30, 2016. See Doc.
40. Further, Plaintiffs have not shown good cause for
this failure to serve.
assert that they were “under the mistaken understanding
that opposing counsel had accepted service on behalf of the
individually-named defendant employees of Defendant SPG,
” and “[o]pposing counsel never advised
Plaintiffs that they did not represent the individual
defendants until recently . . . .” Doc. 85 at
3-4. But Plaintiffs provide no explanation for this mistaken
understanding and “[i]nadvertence or negligence alone
do not constitute ‘good cause' for failure of
timely serve.” Salazar v. City of Albuquerque,
278 F.R.D 623, 627 (D.N.M. 2011) (citing In re
Kirkland, 86 F.3d 172, 176 (10th Cir. 1996)).
Additionally, almost every document filed on the docket by
counsel for Defendant SPG indicates in the introductory
paragraph and the signature line that counsel is only
representing Defendant SPG. See Docs. 41, 43,
44, 51, 53, 54, 62, 72, 73, 76, 78, 84, 87, 88, 92, 95.
But see Doc. 71. Plaintiffs further argue that
Defendants Wides and Little had actual notice and knowledge
of this law suit (Doc. 85 at 3), but again fail to
provide any information to support this claim. Plaintiffs
therefore have not shown good cause as to why an extension of
time to serve is warranted.
the Court, in its discretion, will not grant an extension of
time for service. Although the statute of limitation may bar
re-filing, Plaintiffs appear to lack interest in a pursuing a
claim against the individual defendants. Almost 18 months
have passed since Plaintiffs filed their Second Amended
Complaint without serving the new defendants. Plus, the case
has progressed to the point where Plaintiffs and Defendant