Opinion
No. 1:07-CV-886-CKJ.
February 26, 2010
ORDER
On May 21, 2009, this Court ordered that Defendants were required to file an answer and set forth a procedure for service of Defendants. On June 25, 2009, the Summons were returned unexecuted as to Defendants C. Lopez and B. Hernandez. On August 13, 2009, this Court issued an Order regarding additional service attempts on Defendants C. Lopez and B. Hernandez. Additionally, the Court stated:
If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on a Defendant within 120 days of the filing of this Order, the action may bed dismissed as to each Defendant not served. Fed.R.Civ.P. 4(m).
August 13, 2009, Order, p. 2. On December 17, this Court ordered Plaintiff to show cause why this case should not be dismissed without prejudice as to B. Hernandez. Plaintiff responded to the order to show cause by referring to correspondence to the Attorney General's Office seeking a waiver of service as to B. Hernandez. On February 9, 2010, this Court issued an Order directing the U.S. Marshal's Office to file a Summons Returned Executed, a Summons Returned Unexecuted, a Waiver of Service Returned Executed, or a status report as to the service of B. Hernandez.
The Court also ordered Plaintiff to show cause why the case should not be dismissed as to C. Lopez. The Court subsequently dismissed C. Lopez.
On February 22, 2010, the Summons for B. Hernandez was returned unexecuted. The return includes a September 21, 2009, notation, "per KVSP not employed NO FWD LOCATION[,]" an October 25, 2009, notation, "FWD TO CSP CORCORAN[,]" and a February 1, 2010, notation, "waiver not ret'd, assigned personal svc, fwd fresno." The return also includes a February 9, 2010, notation, "Refused by Anthony Lane (Lit coord)[;] says person not at prison[.]"
As the Court previously advised Plaintiff, service must timely be completed:
If a defendant is not served within 120 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. . . .
Fed.R.Civ.P. 4(m). Service upon B. Hernandez has not been completed in the time set forth by the Court.
Accordingly, IT IS ORDERED:
1. Plaintiff is hereby ORDERED TO SHOW CAUSE why this case should not be DISMISSED WITHOUT PREJUDICE as to B. Hernandez pursuant to Rule 4(m), Fed.R.Civ.P., by filing a writing with this Court on or before March 31, 2010.
2. This case shall be dismissed without prejudice as to B. Hernandez, without further notice, should Plaintiff fail to timely comply with this Order.