Diamond v. Alaska Native Tribal Health Consortium et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DANIEL B. DIAMOND,
Plaintiff,
v.
ALASKA NATIVE TRIBAL HEALTH
CONSORTIUM, et al.,
Defendants.
Case No. 3:20-cv-00317-SLG-KFR
FINDINGS AND RECOMMENDATIONS
The Court recommends dismissal without prejudice of Plaintiff’s Second
Amended 	Complaint. 	Despite 	being 	given 	clear 	instructions, 	and 	multiple
opportunities, Plaintiff has failed to effect proper service in this matter and has not
demonstrated good cause for this failing. In addition, Plaintiff has failed to properly
prosecute this matter or comply with the Court’s instructions regarding proper
service. 	Plaintiff’s failure to comply with the Federal Rules of Civil Procedure
warrants dismissal without prejudice of this matter.
I. 	Procedural History
Daniel B. Diamond, a self-represented litigant (hereinafter “Plaintiff”), filed
this action December 31, 2020 (hereinafter “Complaint”).1 	The Court issued an
order notifying Plaintiff that his action was deficient because it lacked either the
filing fee or an application to waive prepayment of fees and costs.2 On January 28,
2021, Plaintiff filed an Application to Proceed in District Court without Prepaying
Fees 	or 	Costs.3 	The 	Court 	screened 	the 	Complaint 	according 	to 	28 	U.S.C. 	§
1 Docket 1.
2 Docket 3.
3 Docket 4.
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Final R&R on Notice of Intent to Dismiss
Dimond v. ANTHC, et al.
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1915(e)(2)(B)4 and issued an Order Directing Service and Response.5
After 	service 	on 	Defendants 	Alaska 	Native 	Tribal 	Health 	Consortium
(hereinafter “ANTHC”) and the United States Department of Health and Human
Services (hereinafter “HHS”),6 Plaintiff attempted to amend his Complaint by
motion.7 The Court denied the motion but gave guidance and leave to amend. 8 On
August 12, 2021, Plaintiff filed his Second Amended Complaint with a Motion for Late
Filing. 9 	The 	Court 	granted 	Plaintiff’s 	motion, 	accepted 	the 	Second 	Amended
Complaint, and issued a Second Order Directing Service and Response.8 The United
States Marshals Service filed Process Receipts and Returns after serving the Second
Amended Complaint on Defendants ANTHC and HHS.9 	There is no record that
Plaintiff properly served the United States Attorney General or the United States
Attorney’s Office for the District of Alaska.
On December 7, 2021, Plaintiff filed a Motion for Default Judgment.10 	The
Government responded in opposition arguing that the Complaint had not been
properly served on the United States Attorney General and the United States
Attorney’s Office for the District of Alaska pursuant to Federal Rule of Civil
Procedure Rule 4(i), which governs serving the United States and its agencies,
corporations, officers, or employees.11 	The United States sought dismissal of the
Second Amended Complaint because service was incomplete and untimely.12
On January 13, 2022, the Court issued a Third Order Directing Service and
4 Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000) (extending screening
requirements to self-represented litigants seeking to proceed in forma pauperis).
5 Docket 5.
6 Dockets 14 & 18.
7 Docket 19.
8 Docket 20.
9 Dockets 26 & 27.
10 Docket 29.
11 Docket 30. The United States’ opposition refers to “the Complaint.” Pursuant to Local
Rule 15.1 which states that amended complaints replace a previously filed complaint in its
entirety, the Court interpreted the Plaintiff’s motion and United States opposition as
applying to the Second Amended Complaint.
12 Docket 30.
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Response 	explaining 	the 	requirements 	of 	completing 	service 	on 	all 	unserved
Defendants - the United States Attorney General and the United States Attorney’s
Office for the District of Alaska - in order to fully and properly complete service.13
On June 1, 2022, the Court issued an Order Regarding Notice of Intent to Dismiss
warning Plaintiff that service must be completed in accordance with Rule 4 of
Federal Civil Procedure; and if not done so by August 29, 2022, this action would be
dismissed without further notice.14
II. 	Analysis
a. Plaintiff Has Failed to Properly Complete Service.
Plaintiff’s Second Amended Complaint makes clear that this is an action
pursuant to the Federal Tort Claims Act (FTCA). The United States is the sole proper
defendant for an FTCA claim.15 	As explained in the Court’s Third Order Directing
Service and Response, this requires proper service upon the United States and its
agencies, corporations, officers, or employees, in accordance with Rule 4(i) of
Federal Civil Procedure.16
Plaintiff must follow the Federal Rules of Civil Procedure and the Local Civil
Rules for the District of Alaska to complete proper service. Under the Federal Rules,
[i]f 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 or order that service be made within a specified
time.”17
If the plaintiff shows good cause for the failure, the court must extend the
time for service for an appropriate period.18 	At a minimum, “‘good cause̕ means
excusable neglect.”19 To determine whether a plaintiff demonstrates excusable
13 Docket 31.
14 Docket 32.
15 Lance v. U.S., 70 F.3d 1093, 1095 (9th Cir. 1995).
16 Docket 31.
17 Fed. R. Civ. P. 4(m).
18 Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013).
19 In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001).
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neglect, courts use the Pioneer–Briones test:
[T]he determination of whether neglect is excusable is an equitable
one that depends on at least four factors: (1) the danger of prejudice
to the opposing party; (2) the length of the delay and its potential
impact on the proceedings, (3) the reason for the delay; and (4)
whether the movant acted in good faith.20
Here, Plaintiff has failed to make any effort to show good cause or excusable
neglect. An analysis of the Pioneer–Briones test demonstrates that all but the last
factor weigh in favor of finding against excusable neglect.
1. 	Danger of Prejudice to Unserved Defendant: Defendants, if eventually
served, will be required to respond to a complaint concerning issues that
allegedly occurred over four years ago. While this prejudice is limited to
the extent that service could promptly be completed, there is no reason to
anticipate service in the future. This is particularly so given Plaintiff's
failure to demonstrate a desire to proceed with the litigation.
2. Length of Delay and Impact: Over three months have passed since service
was returned unexecuted.
3. 	Reason for Delay: The reason for the delay appears to be the fact that
Plaintiff is deceased.21 In the event this is not the case, it appears as if
Plaintiff or his successors in interest are unable or unwilling to continue
the prosecution of this case.
4. Good Faith: There are no facts to suggest Plaintiff has acted in bad faith.
Plaintiff was required to have completed service on or before April 13,
2022.22 Despite being given notice, additional time, and a warning that Plaintiff’s
case may be dismissed, Plaintiff failed to file any proofs of service by the extended
deadline of August 29, 2022. Furthermore, Plaintiff has failed to show good cause
20 Bateman v. U.S. Postal Service, 231 F.3d 1220, 1223–1224 (9th Cir. 2000).
21 Docket 33. The Court attempted to deliver a copy of its order at Docket 32 on or about
June 2, 2022. The Postal Service returned this mailing to the Court on June 8, 2022,
stamped “Return to Sender, Deceased, Unable to Forward.”
22 Docket 31.
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or excusable neglect to justify another extension of time to complete service on
Defendants. Accordingly, dismissal of this action for failure to complete proper
service is appropriate.
b. Plaintiff Has Failed to Prosecute this Matter.
Additionally, Federal Rule of Civil Procedure 41(b) permits dismissal due to a
plaintiff’s failure to prosecute or comply with a court order. In deciding whether to
dismiss for failure to prosecute or comply with court orders, a district court must
consider five factors: “(1) the public’s interest in expeditious resolution of litigation;
(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants;
(4) the public policy favoring disposition of cases on their merits; and (5) the
availability of less drastic sanctions.”23 All of the factors weigh in favor of dismissal.
An expeditious resolution cannot be reached without service and the Court
must manage its docket to facilitate resolutions in all of the cases before it. Further,
the extended delay - without any justification from Plaintiff - creates a presumption
of prejudice to Defendants.24 	A dismissal at this stage, without prejudice, permits
the future opportunity for resolution on the merits. Lastly, the Court gave extensive
guidance, additional time, and a warning about the failure to serve. 	The Court
cannot move the case toward disposition without Plaintiff's compliance with Court
orders or participation in this litigation. 	The Court finds that no lesser sanction
would be satisfactory or effective to promote resolution.
/ / /
23 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (quoting Henderson v.
Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
24 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).
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III. 	Conclusion
IT IS RECOMMENDED that this case be DISMISSED WITHOUT PREJUDICE
for failure to serve pursuant to Federal Rule of Civil Procedure 4(m), and failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b).
DATED this 13th of October 2022, at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
NOTICE OF RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate
judge to hear and determine matters pending before the Court. For dispositive
matters, a magistrate judge reports findings of fact and provides recommendations
to the presiding district court judge.25 A district court judge may accept, reject, or
modify, in whole or in part, the magistrate judge’s order.26
A party may file written objections to the magistrate judge’s order within 14
fourteen days.27 Objections and responses are limited to five (5) pages in length
and should not merely reargue positions previously presented. Rather, objections
and responses should specifically identify the findings or recommendations
objected to, the basis of the objection, and any legal authority in support. Reports
and recommendations are not appealable orders. Any notice of appeal pursuant to
Fed. R. App. P. 4(a)(1) should not be filed until entry of the district court’s
judgment.28
25 28 U.S.C. § 636(b)(1)(B).
26 28 U.S.C. § 636(b)(1)(C).
27 Id.
28 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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