[00:00:01] Speaker 02:
Good morning, your honors.

[00:00:02] Speaker 02:
May it please the court, Matt Ledoux on behalf of Appellant David Reed.

[00:00:07] Speaker 02:
This appeal is about a pro se IFP litigants access to the courts.

[00:00:12] Speaker 02:
Mr. Reed's extensive service efforts went far beyond what section 1915 and this court's precedents require of an incarcerated IFP litigant, and the district court abused its discretion in concluding otherwise.

[00:00:23] Speaker 02:
Indeed, the district court itself found that Mr. Reed had satisfied his burden when it ordered the marshals to effect service, a clear determination he had met his obligations.

[00:00:32] Speaker 02:
and he did not somehow later unmute them.

[00:00:35] Speaker 02:
In other words, after Mr. Reed had satisfied his burden, he was not under a continuing duty to provide the marshals with up-to-date information regarding the former prison guards he's suing for allegedly beating him.

[00:00:46] Speaker 01:
No court has ever held... May I ask you a question about Walker?

[00:00:49] Speaker 01:
Of course, Your Honor.

[00:00:50] Speaker 01:
So, I agree that it's binding precedent, and I agree that there's certainly a sentence that is fully supportive of Mr. Reed, that so long as he identifies

[00:01:01] Speaker 01:
the defendant and the martial service fails to serve, that's automatically good cause under Rule 4.

[00:01:08] Speaker 01:
Is there any chance that that language is dicta because the Walker Court found there was no abuse of discretion in that case?

[00:01:16] Speaker 01:
And in the very next sentence, they have a sentence which sort of seems to imply that the inmate has to provide more information other than the identity.

[00:01:27] Speaker 02:
So I understand what you're saying, Your Honor.

[00:01:29] Speaker 02:
I believe that Walker stands for the proposition that the plaintiff there, I mean, that terse paragraph you're describing of analysis says only that he failed to provide the information necessary to SERP, which I think is what Your Honor is saying may be more than information necessary to identify.

[00:01:45] Speaker 02:
And as we read Walker and as the seller's court read Pewitt, Walker reads Pewitt and quotes the language from sellers reading Pewitt to say that the information

[00:01:56] Speaker 02:
necessary to serve is the same as the information necessary to identify.

[00:02:01] Speaker 02:
And it does switch back to that language in the analysis, but in announcing what the law and the standard that it's applying is.

[00:02:07] Speaker 02:
It says information necessary to identify.

[00:02:10] Speaker 02:
And we think that's sufficient.

[00:02:13] Speaker 02:
Either way, we think Mr. Reed provided information necessary for the marshals under either one of those standards were the court to pick one, necessary to identify or serve these defendants who were both former prison guard officials and who, using the marshals resources, should have been easily locatable.

[00:02:31] Speaker 00:
But the district court judge has an obligation to manage the trial for all.

[00:02:37] Speaker 00:
of the defendants?

[00:02:38] Speaker 02:
Absolutely, Your Honor.

[00:02:39] Speaker 00:
And in this case, the judge had granted summary judgment and was ready to go to trial for the other defendants who remained who had been served.

[00:02:50] Speaker 00:
So what's the obligation of the judge at that point?

[00:02:55] Speaker 00:
In other words, we have to get ready for trial.

[00:02:58] Speaker 00:
In addition to that, discovery had closed, correct?

[00:03:02] Speaker 04:
Exactly.

[00:03:03] Speaker 00:
And your client had engaged in any discovery whatsoever?

[00:03:07] Speaker 02:
I don't know whether he had engaged in no discovery whatsoever, but certainly nothing remarkable that I'm aware of, Your Honor.

[00:03:16] Speaker 00:
Okay.

[00:03:16] Speaker 00:
But the judge had an obligation after two years to do something with this case, right?

[00:03:22] Speaker 02:
Sure.

[00:03:23] Speaker 00:
Yes, Your Honor.

[00:03:23] Speaker 00:
So doesn't that also affect about the issue of whether or not the judge acted in good faith in going forward?

[00:03:31] Speaker 02:
So I think I think we're talking about I think your honor is getting the prejudice element perhaps because the the district court's dismissal of these litigants did occur well before trial The the state has suggested that that air could have been cured by asking for a continuance for example We don't believe that's the case for our contention is that the dismissal of these defendants impacted Mr. Reed's ability to present his entire case including as to the officer Karski who is the alleged instigator of

[00:04:01] Speaker 02:
the alleged retaliatory beating.

[00:04:04] Speaker 02:
And by depriving him of that opportunity early on in the case, when trial counsel came on, and trial counsel was appointed specifically for trial purposes only, that's a district court dock at ECF 41.

[00:04:18] Speaker 02:
I'm sorry, I don't have the ER site.

[00:04:20] Speaker 02:
But I can represent to the court that in speaking with Mr. Reed's trial counsel before to prepare for this argument,

[00:04:27] Speaker 02:
She did not view it as her role to attempt to reopen a matter that the district court had already ruled on by our count about six times and it's also a little cavalier we think of the state to suggest that the subpoena or a continuance could have solved the problem because a They wouldn't have been there as part They would have been there as witnesses not parties when they were properly sued as parties and should have been there as parties to present the full case and

[00:04:52] Speaker 02:
And B, the marshals would have had to serve the subpoena anyway.

[00:04:56] Speaker 02:
And on this record, we're not confident that they would have been able to do so.

[00:05:00] Speaker 02:
So to your honor's question about when the district court should continue and where we should draw the line here, we are not asking, to use the language in Petent, that you draw some fine line or cabin the district court's discretion in some way.

[00:05:17] Speaker 02:
But we are asking that the marshals do something more than

[00:05:21] Speaker 02:
at the end of this, say, we were directed to a new location, we're not going to tell you what that is, and that's the end of it.

[00:05:27] Speaker 01:
But I think Judge Silver's question not only goes to the prejudice, but also goes to whether the district court committed an abuse of discretion in dismissing the complaint in the first place, right?

[00:05:38] Speaker 01:
If the marshals, I understand they had that sheriff's records office, they could have gone another time, but they did make five attempts to effectuate service here.

[00:05:48] Speaker 01:
And as Judge Silver says, by the time

[00:05:50] Speaker 01:
The district court dismissed the case.

[00:05:51] Speaker 01:
It had already been pending, what, two years and five months.

[00:05:54] Speaker 01:
Sure.

[00:05:56] Speaker 01:
The district court had already ordered the attorney general to provide these two defendants addresses, and Mr. Reed didn't respond to an order to show cause for five months.

[00:06:08] Speaker 01:
So as you said, this is a discretionary decision on the part of the trial court.

[00:06:13] Speaker 01:
even the cases you cite say, hey, we're not requiring you to have endless service attempts.

[00:06:19] Speaker 01:
We're just saying make a decision as to whether the attempts were reasonable, reasonable effort by the Marshals Service.

[00:06:24] Speaker 01:
So why couldn't we find here that after five attempts, two years, five months, an OSC that's not responded to in five months just doesn't meet the abuse of discretion standard?

[00:06:36] Speaker 02:
Sure.

[00:06:37] Speaker 02:
Your Honor, every time the district court, you're right.

[00:06:41] Speaker 02:
Mr.. Reed had many opportunities to to make his case to the district court But every time it asked him to do so it was erring it was it was asking him to provide information that he had no access to There was no reason for example to there's a we don't believe there's a reason to hold against Mr.. Reed The the need to get a document subpoena to get on the Nite County Sheriff's Department.

[00:07:04] Speaker 02:
This isn't a case like Penton

[00:07:05] Speaker 02:
where the marshals were ordered to redouble their service efforts and do conduct further research.

[00:07:13] Speaker 02:
And this court's still reversed.

[00:07:14] Speaker 02:
I acknowledge that Penn is an unpublished case.

[00:07:19] Speaker 02:
But as other cases make clear, for example, Judge Easterbrook Seller's decision noted, pro-sail litigants often get the runaround.

[00:07:26] Speaker 02:
And I think this is a great example of a case where a pro-sail litigant is getting the runaround.

[00:07:31] Speaker 02:
And I think the abusive discretion here was not asking the marshals

[00:07:36] Speaker 02:
at any point to do more than they did.

[00:07:38] Speaker 02:
It was always asking Mr. Yes, Your Honor.

[00:07:40] Speaker 04:
So the state takes a little bit different tack as I understand it.

[00:07:45] Speaker 04:
I mean, they're not, I don't see them as arguing necessarily that there's a Walker violation, but rather it's a failure to respond to the OSC, which puts it in a different category.

[00:07:58] Speaker 04:
Why doesn't the failure to respond to the OSC play into here?

[00:08:03] Speaker 04:
And we've reviewed that as opposed to the straight Walker analysis.

[00:08:08] Speaker 02:
Well, Your Honor, I think the OSCE issued only because of the district court's repeated errors that I've mentioned.

[00:08:15] Speaker 02:
Right.

[00:08:15] Speaker 04:
But I mean, he could have said, yeah, I can't provide it.

[00:08:19] Speaker 04:
That's my response.

[00:08:21] Speaker 04:
But he didn't respond at all.

[00:08:24] Speaker 04:
So they cite Hazen, which is slightly different, but has some similarities.

[00:08:30] Speaker 04:
Hazen wasn't an incarcerated prisoner case.

[00:08:34] Speaker 04:
It was a pro se against.

[00:08:35] Speaker 02:
Right, right.

[00:08:36] Speaker 02:
That was the doctors doing the medical program.

[00:08:40] Speaker 02:
And so.

[00:08:41] Speaker 04:
And I was on the Hazen panel, so.

[00:08:42] Speaker 02:
Of course.

[00:08:43] Speaker 02:
Yes, Your Honor.

[00:08:45] Speaker 02:
Your Honor, again, the failure to respond to the order to show cause, the order to show cause never should have issued.

[00:08:54] Speaker 02:
That's our position.

[00:08:55] Speaker 02:
The fact that it issued it all was, again, as a result

[00:09:01] Speaker 02:
It would not have issued if at any point in this case the district court had said, hey, marshals, can you please do more?

[00:09:08] Speaker 02:
Before on summary judgment, sticking the OSC into the order and asking Mr. Reed to provide more information, it was already clear.

[00:09:18] Speaker 02:
But earlier in the case in granting Reed's request for a subpoena, the district court had already remarked

[00:09:24] Speaker 02:
It was obvious that Mr. Reed doesn't have access to the officer Karski's at least information.

[00:09:30] Speaker 02:
So I'm not sure what the point of the OSC was.

[00:09:33] Speaker 04:
But that was the argument in Hazen.

[00:09:35] Speaker 04:
He said, I even decided I was going to drop them, but now that the state's out, I want them back.

[00:09:39] Speaker 04:
And you said, well, didn't respond to it, so that's the end of it, regardless of the reasons.

[00:09:44] Speaker 02:
your honor I would just say that I do believe that hazen at least that what that seems to have been a strategic choice and there's no evidence on this record that mr. Reed wanted anything other than all five defendants present as his trial there is I'm not going to exclude

[00:09:59] Speaker 02:
excuse a failure to respond to an OSD, but he was moving prisons at the time.

[00:10:05] Speaker 02:
In his eventual late response, he explained why he was late.

[00:10:08] Speaker 02:
The district court just said that it was too little, too late, I believe was the language used.

[00:10:13] Speaker 00:
So hypothetically, let's say that the judge didn't dismiss it.

[00:10:19] Speaker 00:
But at that point, it's obvious there was tremendous error or there were tremendous amount of problems trying to

[00:10:28] Speaker 00:
to locate these people so they could be served.

[00:10:31] Speaker 00:
So the alternative would have been publication, right?

[00:10:35] Speaker 02:
Yes.

[00:10:36] Speaker 00:
Okay.

[00:10:36] Speaker 00:
And so if the publication didn't occur, and likely that's where we would have ended up, right?

[00:10:43] Speaker 02:
Well, Your Honor, I don't have any reason to think we would have needed publication here.

[00:10:48] Speaker 00:
Why?

[00:10:49] Speaker 02:
Because the marshals, there's nothing on this record that indicates the marshals ever did anything to look for these search, their databases, did anything.

[00:10:56] Speaker 00:
Okay, that's interesting because that's the very thing I was going to ask you because I didn't see it in the record is that you felt there was a greater affirmative effort that had to be made by the marshals.

[00:11:13] Speaker 00:
When does it stop such that it seems to me in this case they did quite a bit.

[00:11:21] Speaker 00:
to try to find these individuals.

[00:11:23] Speaker 00:
What didn't they do?

[00:11:25] Speaker 00:
And that was brought to the attention of the marshals, of the court.

[00:11:30] Speaker 00:
that would have defeated the dismissal so that the judge would have said, yeah, I can't dismiss it now because there hasn't been enough.

[00:11:40] Speaker 00:
I don't see that from the record.

[00:11:42] Speaker 02:
Sure, Your Honor.

[00:11:43] Speaker 02:
I think a simple search of their databases, this is the country's premier finder of people who don't want to be found.

[00:11:52] Speaker 02:
There's no indication that these two former state prison guard employees were hiding, that they didn't want to be found.

[00:11:58] Speaker 02:
that a simple search of what resources are available to the marshals couldn't have located them.

[00:12:03] Speaker 02:
And again, we don't want to ask you to cabin the district court's discretion, but we do think it would be at least on this record, the district court always turned back to Mr. Reed.

[00:12:14] Speaker 02:
It never asked the marshals to do anything.

[00:12:16] Speaker 02:
And we'll just say that's not enough.

[00:12:18] Speaker 02:
If that's the rule, at least asking them to do it once would have been doing some kind of research, having something in the record that indicated

[00:12:27] Speaker 02:
that they had looked for them or had pursued the new location they were directed to.

[00:12:32] Speaker 00:
So remind me, in the record, was there a request by your client for them to do such?

[00:12:41] Speaker 00:
Yes.

[00:12:41] Speaker 00:
To check the databases?

[00:12:43] Speaker 02:
Oh, oh.

[00:12:45] Speaker 00:
Your Honor, I- That sounds like a good idea.

[00:12:48] Speaker 00:
But I just don't know that that's something that

[00:12:52] Speaker 00:
They request your client requested or, you know, maybe he didn't know.

[00:12:57] Speaker 02:
Your honor, I don't know about in that specific language.

[00:13:00] Speaker 02:
I wouldn't I wouldn't represent to you that he had made it in that.

[00:13:03] Speaker 02:
But I would say the character of his of his filings was frustration and clear acknowledgement that the marshals had more resources than he did.

[00:13:11] Speaker 00:
And so did you think that your client brought it to the attention of the

[00:13:16] Speaker 00:
judge, you know, they haven't done enough.

[00:13:18] Speaker 02:
Yes, yes, your honor.

[00:13:20] Speaker 02:
I believe that he raised every time he responded to the court, I believe he made that clear.

[00:13:24] Speaker 00:
But he didn't tell them how and that as a matter of law, do you think that the judge should have ordered them to do that, to check the databases?

[00:13:37] Speaker 02:
Again, I don't want to tell the court that in every case they have to do, they have to

[00:13:42] Speaker 02:
take ex-action, but here, I would say absolutely, that would have been, I just can't think of a reason why they wouldn't have done that.

[00:13:49] Speaker 00:
And so that would have been required of the judge to do before your client would suggest publication.

[00:13:57] Speaker 00:
As I understand it, your client was looking into publishing.

[00:14:00] Speaker 02:
Yes, that is correct, Your Honor.

[00:14:02] Speaker 02:
He was doing it himself, which we also think is another indicator of the error and sort of the fact that the marshals had done very minimal work here.

[00:14:12] Speaker 02:
And I see I'm well over time, so if I could, I'd like this.

[00:14:16] Speaker 01:
I'll give you two minutes.

[00:14:17] Speaker 02:
Thank you so much, Your Honor.

[00:14:30] Speaker 03:
Good afternoon, Your Honors.

[00:14:31] Speaker 03:
I'd like to thank the Court for the opportunity to address my arguments to the panel.

[00:14:35] Speaker 03:
The jury properly rendered a verdict in favor of Sergeant Stubbs, Sergeant Rivera, and Officer Dictus because they did not violate the Eighth Amendment.

[00:14:42] Speaker 03:
as these officers were not involved in the use of force and the officers involved properly applied force to Reed an inmate once he punched an officer and became combative and struggled to prevent officers from trying to restrain him.

[00:14:59] Speaker 03:
Reed points to no error by the district court, much less trial error, and fails to cite any legal authority which would even imply such error.

[00:15:08] Speaker 03:
Reed cites no authority for the argument that a jury verdict in favor of defendants

[00:15:11] Speaker 03:
may be reversed because some other alleged co-defendant previously had been dismissed from the case because plaintiffs admitted failure to respond to an order of district cause for lack of service.

[00:15:23] Speaker 01:
That's a question.

[00:15:24] Speaker 01:
You filed an amicus brief on behalf of Karski and Cora Legardo, even though the state had declined to represent them.

[00:15:35] Speaker 01:
So isn't it unfair now for you then to effectively file a merits brief on behalf of those absent defendants?

[00:15:43] Speaker 01:
And then who are you representing today?

[00:15:45] Speaker 01:
Are you representing the three defendants or are you representing also Karski and Corlegarda?

[00:15:50] Speaker 03:
Here I am representing the three defendants that went to trial.

[00:15:54] Speaker 03:
I am also representing the state of Nevada, who is the amicus in this case.

[00:15:58] Speaker 03:
I am not representing the two defendants because

[00:16:01] Speaker 03:
I would be unethical for me to represent them because they have not requested my representation.

[00:16:06] Speaker 03:
I can't represent people who do not request my representation.

[00:16:09] Speaker 01:
But if the state declined previously to represent Karski and Corlegardo, how can you now file an amicus brief that basically is acting as their counsel?

[00:16:21] Speaker 01:
How is that?

[00:16:21] Speaker 03:
Your Honor, I would disagree with you that we're acting as their counsel.

[00:16:24] Speaker 03:
We're acting as amicus.

[00:16:26] Speaker 03:
And we're entitled to act as amicus as a matter of right, because states have a right to act as amicus by statute.

[00:16:32] Speaker 03:
And therefore, we're exercising our right to act as amicus.

[00:16:35] Speaker 03:
And because an amicus is what it is, of course, it's a friend of the court.

[00:16:42] Speaker 03:
There's nobody here to talk about whether or not these people should be defended.

[00:16:46] Speaker 03:
And in times past, it used to be the Ninth Circuit, when these kind of issues arose, it used to be that they reached out to the state to act and file an amicus brief.

[00:16:56] Speaker 03:
For example, say there were no other defendants in this case.

[00:16:59] Speaker 03:
And all you were talking about was a lack of service.

[00:17:01] Speaker 01:
But wouldn't those same arguments apply when the state declined to represent them?

[00:17:05] Speaker 01:
No, no, Your Honor, because- The same concerns would still be there, right?

[00:17:09] Speaker 01:
There's no one here to represent that point of view.

[00:17:12] Speaker 03:
Oh, sorry.

[00:17:13] Speaker 01:
Go ahead, please.

[00:17:14] Speaker 03:
Like I said, Your Honor, it would be unethical to do it because we ourselves have not been able to contact them.

[00:17:22] Speaker 03:
We do not have their forwarding address.

[00:17:25] Speaker 03:
We have not contacted.

[00:17:26] Speaker 03:
And therefore, they have not requested us to represent them.

[00:17:30] Speaker 03:
We cannot represent somebody and act as their counsel without their permission to do so, state or anybody else.

[00:17:37] Speaker 03:
That would be an ethical violation that would get you disbarred.

[00:17:42] Speaker 00:
Let me ask you, counsel, I don't see anything in the record that indicates that your clients would have been prejudice if a continuance had been granted by the district court judge to further attempt to locate the two missing defendants.

[00:18:00] Speaker 03:
I would disagree, your honor.

[00:18:01] Speaker 00:
Well, is there anything in the record, counsel, is what I'm asking, because I didn't see it in the record.

[00:18:07] Speaker 00:
Have I missed it?

[00:18:08] Speaker 03:
Well, I mean, other than that this case has been going on, it's been 15 months since the time when they discussed the service.

[00:18:15] Speaker 00:
I'm asking, is there anything in the record?

[00:18:18] Speaker 00:
That is the record.

[00:18:18] Speaker 00:
The counsel did say, for example, the state's counsel come forward and say, you know, we got to get this thing going, Judge.

[00:18:26] Speaker 00:
We don't want to wait till you've asked.

[00:18:28] Speaker 00:
You've issued an order to show cause why the other defendant shouldn't be dismissed.

[00:18:32] Speaker 00:
And we agree with that.

[00:18:33] Speaker 00:
They should be dismissed.

[00:18:34] Speaker 00:
Our clients need to go forward.

[00:18:36] Speaker 00:
Anything in the record?

[00:18:37] Speaker 03:
Well, no, because I think that this was pushed forward by the court, not by our office.

[00:18:41] Speaker 03:
The court's saying that, hey, we've now had 15 months since these people have been dismissed.

[00:18:46] Speaker 03:
We've gone through discovery.

[00:18:47] Speaker 03:
The court wanted to have a trial because your honor is very much aware that the rules of civil procedure now are in effect, that they want these things for food.

[00:18:55] Speaker 03:
more spontaneously.

[00:18:56] Speaker 03:
Usually, you have six months for discovery and go forward.

[00:18:59] Speaker 00:
But your position wasn't, wow, we're going to not be able to get our witnesses here.

[00:19:04] Speaker 00:
The delay has been so long that our clients are really denied due process.

[00:19:10] Speaker 00:
You never claimed that.

[00:19:11] Speaker 03:
We didn't claim that because it wasn't an issue raised by the opposing party that they wanted to delay trial.

[00:19:15] Speaker 03:
I mean, we may have raised it if they came up with some argument and said, hey, we want to continue this because of these things.

[00:19:21] Speaker 03:
And trial counsel, who I was not trial counsel, so I can't speak on their behalf,

[00:19:25] Speaker 03:
But I can very much imagine that trial counsel would say, hey, you know, this case has gone on long enough.

[00:19:29] Speaker 03:
We want to do it.

[00:19:30] Speaker 03:
They've had 15 months to locate these people.

[00:19:33] Speaker 03:
They've had trial counsel.

[00:19:35] Speaker 03:
They have counsel here.

[00:19:36] Speaker 03:
And they claim still.

[00:19:38] Speaker 03:
They don't know where they are.

[00:19:39] Speaker 03:
So it's just a little bit disingenuous to say that the marshals could have found them when there's two trial counsels who says that they still don't know where they are.

[00:19:48] Speaker 03:
And I would also point out that what they're arguing is would have disastrous consequences.

[00:19:53] Speaker 03:
Defendants are dismissed throughout litigation for failure to serve by distant court screening orders, by motions to dismiss, by motions of summary judgment.

[00:20:02] Speaker 03:
If trial could be overturned because a defendant was previously dismissed, even improperly, trial would become expensive waste of time, squandering the resources of both this court and the defendants.

[00:20:15] Speaker 01:
But let me ask you, the martial service were given a new location, the sheriff's office records facility on Basin Road.

[00:20:25] Speaker 01:
It was closed, they went there one time when it was closed, and they never went back.

[00:20:30] Speaker 01:
How is that reasonable effort?

[00:20:33] Speaker 03:
How is it reasonable effort?

[00:20:35] Speaker 03:
First of all, that was not a trial subpoena.

[00:20:39] Speaker 03:
That was not a service subpoena.

[00:20:41] Speaker 03:
That was a subpoena.

[00:20:44] Speaker 03:
That was a subpoena

[00:20:45] Speaker 03:
for records from the parties, on behalf of the parties.

[00:20:50] Speaker 03:
And my personal opinion, reading this record, is that I don't believe that the marshals, when it comes to those kind of subpoenas, has any obligation to locate anybody.

[00:21:00] Speaker 01:
They just go out when it's not a... So this subpoena was for documents evidencing the last known mailing and residential addresses of former Deputy Sheriff Paul Karski.

[00:21:13] Speaker 01:
So it would have been highly relevant documents, and they were directed to Sheriff's Office Records Department, and they never went back, even though they were just given a new place to go to get exactly that information.

[00:21:26] Speaker 01:
So how is that reasonable effort?

[00:21:29] Speaker 03:
Well, Your Honor, because like I was saying, in the case when it's not the subpoena, the subpoena of the actual parties, but a subpoena for evidence or

[00:21:43] Speaker 03:
For example, the addresses here, I think that the marshal's office doesn't have the same obligation as they do with respect to trial subpoenas.

[00:21:51] Speaker 04:
But Your Honor, I... In what case has... You know, Your Honor, I have... I mean, you're making a pretty bold statement here and broad statement that marshals don't have any duty.

[00:22:01] Speaker 04:
Do you have any citation?

[00:22:03] Speaker 03:
I don't, but it's just my reviewing of the cases with respect to that these issues have only been raised, only been raised with respect to subpoenas for

[00:22:13] Speaker 03:
serving a complaint.

[00:22:14] Speaker 03:
I've never seen, and that's the thing, I've never seen the case where it was for a trial for an evidentiary subpoena.

[00:22:19] Speaker 04:
So, I mean, in your view, the Marshal can say, yeah, we don't have to try very hard, it's only a subpoena?

[00:22:24] Speaker 03:
No, no, Your Honor.

[00:22:26] Speaker 03:
I mean, that's your argument.

[00:22:27] Speaker 03:
They have to have the correct address, though.

[00:22:30] Speaker 03:
And that's what I think happened here, is that those kind of evidentiary subpoenas cannot be just served on an office.

[00:22:38] Speaker 03:
They usually have to be served by statute on certain personnel and

[00:22:43] Speaker 03:
And that's what I believe happened here.

[00:22:44] Speaker 03:
I know the record is kind of murkier in that particular instance.

[00:22:47] Speaker 01:
But the thing is, I think we're getting far afield because- So you're saying a subpoena to get an address to serve a trial subpoena is inferior and doesn't come with the same obligations as the subpoena to serve the trial subpoena?

[00:23:01] Speaker 03:
That's correct, Your Honor.

[00:23:03] Speaker 03:
That's my decision.

[00:23:03] Speaker 01:
All right.

[00:23:03] Speaker 01:
Well, why don't you show me where in Walker, in Puit, that proposition exists.

[00:23:10] Speaker 03:
OK.

[00:23:11] Speaker 03:
Well, because none of those cases, I can't show you in any of those cases because none of those cases raise that issue.

[00:23:16] Speaker 01:
I'm going to look at the statement in Walker.

[00:23:17] Speaker 01:
So long as a prisoner has furnished the information necessary to identify the defendant, the marshal's failure to effect service is automatically good cause within the meaning of rule four.

[00:23:26] Speaker 01:
I don't see anything in there that says effect service of a complaint and service of process.

[00:23:32] Speaker 01:
It just says effect service.

[00:23:34] Speaker 03:
Right.

[00:23:35] Speaker 03:
I know, but Your Honor, you have to go under the light of facts.

[00:23:37] Speaker 03:
There was no facts suggesting that there was a subpoena for records.

[00:23:43] Speaker 03:
I mean, that's all I can say, Your Honor.

[00:23:45] Speaker 03:
But if you want to go to the Walker case, though, Your Honor, Walker is full on point with this.

[00:23:49] Speaker 03:
Because in the Walker case, what happened was, is there was an order to show cause, just like there was in this case.

[00:23:56] Speaker 03:
But in that case, guess what happened?

[00:23:58] Speaker 03:
The defendant responded to the order to show cause.

[00:24:00] Speaker 03:
And even though the defendant responded, which admittedly didn't happen here, the court said the defendant didn't meet his obligation of identifying enough information to have the person serve the appropriate address.

[00:24:16] Speaker 03:
So I guess that's the other point, I guess, going on with your point, Judge Coe, that, for example, that he didn't provide enough information to serve the right party with respect to getting a records request, if you want to bring it out further along the locker lines.

[00:24:32] Speaker 03:
He didn't provide enough information.

[00:24:33] Speaker 03:
He didn't provide the proper place to get those kind of records.

[00:24:38] Speaker 03:
Your Honor, I see my time has expired.

[00:24:40] Speaker 01:
I have no further questions.

[00:24:41] Speaker 01:
Let me see if my colleagues do.

[00:24:44] Speaker 00:
Just one question.

[00:24:45] Speaker 00:
I just want to make sure on this issue.

[00:24:48] Speaker 00:
So you are the counsel representing the state knew full well that there was an order to show cause concerning the two other defendants.

[00:25:01] Speaker 00:
No response.

[00:25:03] Speaker 00:
Did you ever, on behalf of the state, take a position on that?

[00:25:08] Speaker 00:
So you were taking a position

[00:25:10] Speaker 00:
Say, for example, that often happens in trial, and I'm somewhat repeating myself.

[00:25:14] Speaker 00:
We need to go to trial, Judge.

[00:25:17] Speaker 00:
We need this to go forward.

[00:25:19] Speaker 00:
Or did you decide it really didn't make any difference?

[00:25:22] Speaker 00:
We'll go to trial whenever.

[00:25:24] Speaker 00:
And it was a year later.

[00:25:25] Speaker 00:
Discovery had been concluded.

[00:25:29] Speaker 00:
So were you silent on that issue such that the judge wasn't concerned, at least from your perspective, or the other defendants who were going to trial's perspective?

[00:25:42] Speaker 00:
I need to move this on.

[00:25:44] Speaker 03:
Your Honor, I'm not specifically recall exactly what this record, but the best of my recollection is that this was the trial courts wanting to move the case forward.

[00:25:58] Speaker 03:
And I can't say because I wasn't trial counsel below, but generally my policy is that in these cases that I'm not out looking to get parties dismissed for failure to serve.

[00:26:10] Speaker 03:
We do our best to try to give the last known address, provide parties.

[00:26:14] Speaker 03:
And in fact, if we try, if we can contact, if we could have contacted these officers and they would respond to us and requested representation,

[00:26:22] Speaker 03:
We would have accepted service on their behalf.

[00:26:25] Speaker 03:
There wouldn't have been a service issue, because we would have done it.

[00:26:28] Speaker 03:
Because that's our policy in our office, Your Honor.

[00:26:30] Speaker 04:
Well, they really weren't too hard to find.

[00:26:33] Speaker 04:
What?

[00:26:33] Speaker 04:
They really weren't too hard to find.

[00:26:36] Speaker 04:
I mean, there was a press release about one of them being appointed to deputy sheriff in Arizona.

[00:26:43] Speaker 04:
It was out there in the public.

[00:26:45] Speaker 04:
All you had to do was Google it.

[00:26:46] Speaker 03:
I don't know if that Google site was there at the time when we were doing the search.

[00:26:52] Speaker 03:
All I can tell you is that our office, I can make assurances to your office.

[00:26:57] Speaker 03:
We made great efforts to try to contact these individuals and try to get so we can represent them in litigation.

[00:27:03] Speaker 03:
We would prefer to represent the individual defendants rather than, and we would prefer to accept service on their behalf.

[00:27:10] Speaker 03:
But when we can't contact them,

[00:27:16] Speaker 03:
And or they don't respond to our request for representation.

[00:27:21] Speaker 03:
We can't force them to say, yeah, we want you to represent us.

[00:27:25] Speaker 04:
I'm not quarreling with you.

[00:27:26] Speaker 04:
I'm just saying they weren't that hard to find.

[00:27:27] Speaker 03:
That's what I'm just saying.

[00:27:28] Speaker 03:
I'm just trying to make a point.

[00:27:30] Speaker 03:
Thank you, Your Honors.

[00:27:31] Speaker 03:
I respectfully request that you affirm the district court in all respect.

[00:27:35] Speaker 01:
All right, thank you.

[00:27:51] Speaker 02:
Your honor, just a few points.

[00:27:56] Speaker 02:
The dismissal here affected the entire case landscape.

[00:28:00] Speaker 02:
It was based on an alleged conspiracy to retaliate against Mr. Reed.

[00:28:05] Speaker 02:
But whether Officer Karski properly initiated a use of force incident

[00:28:09] Speaker 02:
was critical to all of the officers.

[00:28:12] Speaker 01:
Can I ask you a question?

[00:28:13] Speaker 01:
Of course.

[00:28:14] Speaker 01:
I still am focused on this abuse of discretion.

[00:28:17] Speaker 01:
The cases that support your position seem factually distinguishable.

[00:28:24] Speaker 01:
In Pruitt, the martial service failed to comply with the federal rules of civil procedure.

[00:28:29] Speaker 01:
They failed to

[00:28:30] Speaker 01:
serve the U.S.

[00:28:32] Speaker 01:
Attorney General when these were federal defendant officers.

[00:28:36] Speaker 01:
They didn't do individual service when they didn't get the acknowledgement of mail service.

[00:28:41] Speaker 01:
The other cases, there's only one attempt at service, I think, in the Graham case.

[00:28:45] Speaker 01:
In Sellers, they were, the inmate provided the address for the former warden.

[00:28:51] Speaker 01:
The other people were current U.S.

[00:28:53] Speaker 01:
Bureau of Prisons officers.

[00:28:56] Speaker 01:
So I see the language in Walker is very favorable to Mr. Reed, but I do wonder about what the facts here.

[00:29:03] Speaker 01:
You got this OSC.

[00:29:04] Speaker 01:
You've got these five attempts.

[00:29:10] Speaker 01:
Why would we still find abuse of discretion here?

[00:29:12] Speaker 02:
Sure.

[00:29:12] Speaker 02:
Your Honor, I think it's distinguishable, but I think it's distinguishable in our favor.

[00:29:16] Speaker 02:
I think all of those cases present situations where the litigant did far less than Mr. Reed did here.

[00:29:26] Speaker 02:
And again, I have to reiterate that every time the marshals failed to discharge their obligations, the district court returned to Mr. Reed.

[00:29:35] Speaker 02:
despite knowing they kept asking him, give the marshals more information.

[00:29:39] Speaker 02:
You tell them what to do.

[00:29:41] Speaker 02:
Not, hey, marshals, why aren't you going out and doing more research?

[00:29:44] Speaker 02:
And again, I'll point you back to Penton, which I acknowledge is unpublished.

[00:29:47] Speaker 02:
But the district court there, I think, properly ordered the marshals to conduct further research, ordered them to redouble their efforts.

[00:29:54] Speaker 02:
As you pointed out, they had a location they could have gone to.

[00:29:57] Speaker 02:
There's no evidence that they did anything with that information beyond, including providing it under seal, the actual address to the court.

[00:30:05] Speaker 02:
So I apologize.

[00:30:08] Speaker 02:
I see I'm going over time again.

[00:30:09] Speaker 02:
So I would just respectfully request the court reverse the order of dismissal, vacate the judgment as to the remaining defendants, and remand for further proceedings, including reopening, discovery, and a new trial, if your honors have no further questions.

[00:30:21] Speaker 01:
Let me see if my colleagues have came.

[00:30:23] Speaker 01:
Okay.

[00:30:24] Speaker 01:
Thank you very much.

[00:30:25] Speaker 01:
Thank you to both councils for your helpful arguments today.