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$100,000 Damage Award Vacated for Seven-Year Service Delay

The Ninth Circuit Court of Appeals vacated a $100,000 excessive force judgment, and ordered dismissal of the action due to a seven-year delay in service on the defendants.

On August 9, 1995, Robert Efaw was confined in the Navajo County Jail in Winslow, Arizona when guards Jack Kerr and Teresa Williams entered his cell and assaulted him. He was struck ?more than 20 times in the face, throat, and head, and [the guards] ?four-pointed? him by handcuffing his hands and feet to the bed with his arms splayed above his head. Plaintiff was hospitalized later that night.? Kerr prepared an ?Offense Report? that claimed Efaw had attacked Kerr and Williams ?when they entered his cell and that Kerr hit the Plaintiff and shackled him in order to subdue him.?

On July 29, 1996, a federal court dismissed Efaw?s initial lawsuit on technical grounds. Efaw then secured counsel and filed an amended complaint on October 4, 1996 that named Kerr, Williams and several other defendants. By January 9, 1997, Efaw had served all but Williams and one other defendant, who were no longer employed by Navajo County when service was attempted. Despite being granted an additional 180 days to serve Williams, Efaw failed to do so.

Efaw?s attorney withdrew in 1997 and new counsel did not appear on his behalf until April 2001. In the interim, Kerr died in 1998. On August 13, 2003, the district court granted summary judgment to all of the defendants except Kerr and Williams. On September 9, 2003, Williams moved to dismiss herself as a party under FRCP 4(m) because Plaintiff had failed to complete service of process. The court denied the motion and granted Efaw thirty days to serve Williams. Efaw finally completed service within the allotted time.

The case proceeded to trial with Williams as the only remaining defendant. The court excluded Kerr?s ?Offense Report? on hearsay grounds. The jury then returned a verdict in favor of Efaw and awarded him nominal and compensatory damages of $10,000 and punitive damages of $90,000.

Williams appealed and the Ninth Circuit vacated the judgment and ordered dismissal, finding that the district court had abused its discretion in denying Williams? motion to dismiss based on the plaintiff?s failure to comply with FRCP 4?s service requirements. The appellate court found ?the length of the delay was extraordinary,? and held that the ?Plaintiff offered no reasonable explanation for his seven-year failure to serve defendant.? The court also noted that the ?Plaintiff was represented by counsel for a significant portion of the seven years,? ?there is no evidence in the record that Defendant knew about the action not withstanding Plaintiff?s failure to effect proper service,? and ?the delay prejudiced Defendant.? See: Efaw v. Williams, 473 F.3d 1038 (9th Cir. 2007).

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Related legal case

Efaw v. Williams