United States District Court, D. Montana, Helena Division
SCHMAUS FAMILY PROPERTIES INC. and JOSEPH H. SCHMAUS, Plaintiff,
UNITED STATES BUREAU OF LAND MANAGEMENT, et al., Defendants.
AMENDED FINDINGS AND RECOMMENDATIONS
Johnston, United States Magistrate Judge
Joseph H. Schmaus (“Mr. Schmaus”) and Schmaus
Family Properties, LLC (collectively
“Plaintiffs”) filed this action on June 9, 2017.
(Doc. 1). Plaintiffs failed to provide the Court with a proof
of service of summons and complaint on the Defendants.
Accordingly, on February 27, 2018, the Court ordered that
Plaintiffs file proof service of summons and complaint on the
Defendants on or before March 27, 2018, or their case would
be dismissed without prejudice. (Doc. 3 at 2).
March 19, 2018, in response to the Court's Order to show
cause, Plaintiffs filed a Motion to Amend Complaint and to
Extend Time for Service of Summons and Complaint
(“Motion to Amend”). (Doc. 4). The Motion to
Amend sought an additional 120 days to amend the Complaint
and to serve the summons and amended complaint on the
Defendants. (Doc. 5 at 3).
Rule of Civil Procedure 4(m) states:
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.
argue that they need an additional 120 days to amend the
complaint and serve the Defendants. Plaintiffs state that
because the alleged wrongdoing by the United States Bureau of
Land Management (“BLM”), the United States Bureau
of Reclamation (“USBR”), and their respective
officers is ongoing, it will require Plaintiffs to amend
their complaint as more wrongs are committed. (Doc. 5 at 2).
Plaintiffs argue that they have recently discovered new
evidence which they will use to prove their case, but due to
the nature of the evidence, it will not be available until
after April 2, 2018, at which time they need to amend their
complaint. (Id.) Finally, Plaintiffs state that
dismissal, even without prejudice, would highly prejudice
them because the twelve-year statute of limitations for their
quiet title cause of action has since expired and they would
be barred from pursuing that claim. (Id. at 3).
summons is a legal document which 1) includes the name of the
court and parties, 2) is directed to the defendant, 3) states
the name and address of the plaintiff's attorney (or
plaintiff's address if pro se), 4) states the time within
which the defendant must appear and defend, 5) notifies the
defendant that failure to appear and defend will result in
default, 6) is signed by the clerk, and 7) bears the
court's seal. Fed.R.Civ.P. 4(a). “A summons-or a
copy of a summons that is addressed to multiple
defendants-must be issued for each defendant to be
served.” Fed.R.Civ.P. 4(b). Finally, Fed.R.Civ.P. 4(c)
states that a summons “must be served with a copy of
the complaint.” Therefore, from the date they filed
their complaint, Plaintiffs had 120 days in which to serve a
copy of their Complaint and a summons on each the respective
Defendants in order to avoid dismissal. Furthermore,
Fed.R.Civ.P. 4(1) requires that “[U]nless service is
waived, proof of service must be made to the court.”
Plaintiffs bear the burden of proving that “good
cause” exists to excuse a delay in service of process.
Lepone-Demsey v. Carroll County Comm'rs, 476
F.3d 1277, 1281 (11th Cir. 2007). At minimum, good cause
requires a showing of a good faith effort by the plaintiff
and a reasonable basis, beyond plaintiff's control, for
failing to comply with the Rules, such as a service-evading
defendant, a pending bankruptcy stay, or a sudden illness or
a natural catastrophe. See Mann v. Castiel, 681 F.3d
368, 374-75 (D.C. Cir. 2012); see also De Tie v. Orange
County, 152 F.3d 1109, 1111-12 (9th Cir. 1998);
Matasareanu v. Williams, 183 F.R.D. 242, 246 (C.D.
seem to conflate service of a summons on each of the
Defendants with amending their complaint. In their brief in
support of their motion, Plaintiffs provide several arguments
for good cause to amend their complaint. Amending pleadings
is governed by Fed.R.Civ.P. 15(a). As the Ninth Circuit has
noted on several occasions, the “Supreme Court has
instructed the lower federal courts to heed carefully the
command of [Fed. R. Civ. P. 15(a)] by freely granting leave
to amend when justice so requires.” DCD Programs,
Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cit. 1987)
(quoting Gabrielson v. Montgomery Ward & Co.,
785 F.2d 762, 765 (9th Cir.1986)).
good cause offered by Plaintiffs, however, does not excuse
their apparent failure to serve a summons on each of the
Defendants pursuant to Fed.R.Civ.P. 4. The presence of an
ongoing injury and the existence of new evidence may be
relevant to whether a court would grant leave to amend a
complaint, but are not relevant to Plaintiffs' failure to
comply with Fed.R.Civ.P. 4 and serve Defendants with a
summons and file proof of such service with the Court.
Furthermore, Plaintiffs' claim that they will be
prejudiced by the tolling of the statute of limitations is
not a compelling argument. “Courts have been generally
unforgiving  when a late filing is due to claimant's
failure ‘to exercise due diligence in preserving his
legal rights.' ” Scholar v. Pacific Bell,
963 F.2d 264, 268 (9th Cir. 1992) (quoting Irwin v. Dept.
of Veterans Affairs, 498 U.S. 89, 96 (1990)).
Court finds that Plaintiffs have not met their burden to show
good cause to grant an extension of time for them to serve
each of the Defendants with a summons. Therefore, the
district court should deny Plaintiffs' Motion to Amend
with respect to their request to extend time for service. The
Court's February 27, 2018 Order (Doc. 3) should remain in
effect; Plaintiffs must properly serve each Defendant and
file proof of service of a summons and complaint on each
Defendant on or before March 27, 2018, or their claim should
be dismissed without prejudice, pursuant to Fed.R.Civ.P.
Plaintiffs provide proof of service on or before March 27,
2018, and the case is not dismissed, the Court will determine
whether good cause exists to grant Plaintiffs leave to file
an amended complaint, mindful of the Ninth Circuit's
mandate to apply Fed.R.Civ.P. 15(a) with “extreme
liberality.” DTD Programs, 833 F.2d at 186
the Court finds that Plaintiff Schmaus Family Properties,
LLC, should be dismissed from this action without prejudice
because it is not represented by a licensed attorney admitted
to practice in the United States District Court for the
District of Montana. The Schmaus Family Properties, LLC is
listed as a plaintiff in this action alongside Mr. Schmaus,
who is representing himself as a pro se litigant.
(See Doc. 1). Although “parties may plead and
conduct their own cases personally, ” see 28 U.S.C.
§ 1654, “the right to proceed pro se in civil
cases is a personal right” and a person appearing pro
se has no authority to represent others. C.E. Pope Equity
Trust v. United States, 818 F.2d 696, 697 (9th Cir.
1987); see also Johns v. Cty. of San Diego, 114 F.3d
874, 876 (9th Cir. 1997) (“While a non-attorney may
appear pro se on his own behalf, he has no authority to
appear as an attorney for others than himself.”)
(citations and quotation marks omitted). Accordingly,
Plaintiff Schmaus Family Properties, LLC, may not proceed
without counsel. See Rowland v. California Men's
Colony, Unit II Men's Advisory Council, 506 U.S.
194, 202 (1993) (“lower courts have uniformly held that
28 U.S.C. § 1654, providing that ‘parties may
plead and conduct their own cases personally or by counsel,
' does not allow corporations, partnerships, or
associations to appear in federal court otherwise than
through a licensed attorney”); see also Eagle
Assocs. v. Bank of Montreal, 926 F.2d 1305, 1309-10 (2d
Cir. 1991) (partnership ...