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Christ v. State, City of Missoula Police Department

United States District Court, Ninth Circuit

August 26, 2013

JASON CHRIST, Plaintiff,
v.
STATE OF MONTANA, CITY OF MISSOULA POLICE DEPARTMENT, OFFICE OF THE PUBLIC DEFENDER, DETECTIVE STACY LEAR, JUDGE KAREN TOWNSEND, MISSOULA COUNTY DISTRICT ATTORNEYS JENNIFER CLARK and ANDREW PAUL, Defendants.

ORDER

JEREMIAH C. LYNCH, Magistrate Judge.

A Fed.R.Civ.P. 16 preliminary pretrial conference is presently set to be conducted on August 29, 2013. On August 22, 2013, Defendants City of Missoula Police Department and Stacy Lear filed their Fed.R.Civ.P. 26(f) proposed discovery and scheduling plan. In their proposal the Defendants indicate that Plaintiff Jason Christ did not respond to their effort to confer with him relative to the required Rule 26(f) conference and plan, and he failed to participate in preparing a jointly proposed schedule. Therefore, IT IS HEREBY ORDERED that the August 29, 2013 preliminary pretrial conference is VACATED, and the Court will set a schedule in this matter below.

Also, on August 21, 2013, Christ moved for a continuance of this action, and he moved for leave to file an amended complaint. Christ states he needs more time to prosecute this case due to medical conditions he has, and he needs more time to prepare a more detailed amended complaint which will contain new claims.

Defendants City of Missoula Police Department and Stacy Lear filed a brief in response to Christ's motions. Those Defendants oppose Christ's motion to continue these proceedings. They represent to the Court that contrary to Christ's description of his back injury and his asserted resulting inability to be active and prepare legal documents, Christ has been actively involved in legal proceedings in state court.

Based on the record before the Court, Christ has not presented sufficient convincing evidence of good cause warranting a continuance of these proceedings at this time. Therefore, IT IS HEREBY ORDERED that Christ's motion for a continuance is DENIED.

With respect to Christ's motion to amend his Complaint, Defendants City of Missoula Police Department and Stacy Lear state that they do not oppose the motion. Furthermore, the Court notes that Defendants Jennifer Clark and Andrew Paul filed a motion on August 21, 2013, requesting the Court dismiss this action against them on the ground that Christ failed to effect service of his Complaint upon them within 120 days after it was filed with the Court as required by Fed.R.Civ.P. 4(m). Clark and Paul's motion is properly construed as a motion to dismiss for insufficient service of process under Fed.R.Civ.P. 12(b)(5). Hernandez v. Senegor, 2013 WL 1966122, *4 (E.D. Cal. 2013); J.O. ex rel Overstreet v. City of Phoenix, 2013 WL 623601, *2 (D. Ariz. 2013). The proper procedural vehicle for obtaining a dismissal under Rule 4(m) is Fed.R.Civ.P. 12(b)(5) which allows for a dismissal for "insufficient service of process[.]" See Wasson v. Riverside County, 237 F.R.D. 423, 424 (C.D. Cal 2006).

Because Clark and Paul's motion to dismiss is deemed a motion filed under Rule 12(b)(5), the provisions of Fed.R.Civ.P. 15(a)(1) apply to Christ's motion to amend. Rule 15(a)(1) states as follows:

(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
[...]
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

Fed. R. Civ. P. 15(a)(1). Although Defendants City of Missoula Police Department and Stacy Lear filed their responsive pleading to Christ's Complaint on July 30, 2013 (Dkt. 4), they do not oppose Christ's motion to amend. See Fed.R.Civ.P. 15(a)(2). Consequently, the Court deems it appropriate to conclude that Clark and Paul's Rule 12(b)(5) motion triggered the 21 days within which Christ is permitted to amend his complaint once as a matter of course. Thus, Christ need not move for leave to amend, and IT IS HEREBY ORDERED that Christ's motion to amend his Complaint is DENIED as moot.

1. Pursuant to Fed.R.Civ.P. 16(b), the Court imposes the following schedule which will govern all further pretrial proceedings:

[1]

Continuance of the above deadlines will not be granted, absent compelling reasons. A continuance of any deadline set by this order does not extend any other deadline, particularly the motions deadline or trial deadline.

IT IS FURTHER ORDERED:

2. Local Rules and electronic filing. All counsel shall take steps to register in the Court's electronic filing system ("CM-ECF"). All counsel must show cause if they are not filing electronically. Further information is available on the Court's website, ...


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