Antonetti v. Las Vegas, Nevada, Co. Clark, 2:13-cv-00064

Background

Plaintiff Joseph Antonetti, a pro se incarcerated litigant, filed a § 1983 complaint and an amended complaint; several counts and many named defendants were previously dismissed for failure to state a claim or on immunity grounds.
The court allowed only Count IV to proceed against certain identified defendants (Polley, Page, Goodwin, McKinnon, Sgt. Johnson, Zausa, and two unidentified defendants by number) and ordered Antonetti to provide USM-285 forms for service.
After more than 120 days elapsed without service, the court dismissed the action without prejudice under Fed. R. Civ. P. 4(m) for failure to effectuate service; Antonetti moved for reconsideration and appealed.
Antonetti argued he lacked full names/addresses and needed more explicit instruction that action was required; he also relied on the principle that incarcerated, in forma pauperis plaintiffs may rely on the U.S. Marshal for service.
The court found Antonetti’s delay excusable given his pro se incarcerated status, minimal prejudice to defendants, and some error in prior orders for not directing the Attorney General to assist with service when sufficient identifying information exists.
The court granted reconsideration, vacated the dismissal and clerk’s judgment, reset a 90-day service deadline, and ordered the Clerk to serve the Attorney General with the complaint and related orders so the AG can accept service or provide last-known addresses under seal; the U.S. Marshal is directed to attempt service where addresses are provided.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal under Rule 4(m) should be reconsidered	Antonetti said he lacked names/addresses, was not warned clearly, and relied on Marshal for service	Court/AG: plaintiff must provide identifying info; court need not investigate addresses	Reconsideration granted under Rule 60(b)(1): excusable neglect and some court error support vacatur
Whether incarcerated IFP plaintiffs can rely on U.S. Marshal for service	Antonetti relied on Puett — entitled to rely on Marshal for service	Court: reliance allowed but plaintiff must supply info to effect service; court not an investigator	Court reaffirmed Puett but required plaintiff to provide identifying info; ordered AG involvement to facilitate service when info suffices
Whether the court must assist in locating defendant addresses	Antonetti urged court/Clerk/Marshal should effect service or locate names	Court: no obligation to act as investigator or counsel for pro se litigants	Court limited its role but directed Clerk to serve AG to accept service or provide last-known addresses under seal
Appropriate remedy and deadlines after vacatur	Antonetti sought reinstatement and guidance	Court/AG procedural concerns about service timing	Court vacated dismissal, reset service period to 90 days, ordered procedures for AG notice and Marshal service

Key Cases Cited

Mackey v. Hoffman, 682 F.3d 1247 (9th Cir.) (discusses Rule 60(b) and fraud distinctions)
TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691 (9th Cir.) (finality interest yields to merits when no merits decision entered)
Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141 (Sup. Ct.) (overruling context referenced for TCI decision)
Brandt v. American Bankers Ins. Co. of Florida, 653 F.3d 1108 (9th Cir.) (excusable neglect is an equitable inquiry)
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253 (9th Cir.) (factors for evaluating excusable neglect)
Puett v. Blandford, 912 F.2d 270 (9th Cir.) (incarcerated IFP plaintiffs may rely on U.S. Marshal for service)
Pliler v. Ford, 542 U.S. 225 (Sup. Ct.) (district judges have no obligation to act as counsel or paralegal for pro se litigants)
Smith v. 727 F.3d 955 (9th Cir.) (recognizes error as a ground for reconsideration)