Opinion
ED CV 21-1812 FMO (SPx)
02-09-2022
Iren Anderson v. U.S. Department of Education
Present: The Honorable Fernando M. Olguin, United States District Judge
CIVIL MINUTES - GENERAL
Proceedings: (In Chambers) Order to Show Cause re: Proof of Service
On or about October 26, 2021, pro se plaintiff Iren Anderson (“plaintiff”) filed her Complaint against defendant U.S. Department of Education (“defendant”). (Dkt. 1, Complaint). On December 1, 2021, plaintiff filed a proof of service with a copy of certified mail receipts indicating that the summons and complaint had been mailed to the U.S. Attorney General and the Civil Process Clerk for the U.S. Attorney for the Central District of California. (See Dkt. 7, Proof of Service by Mail at ECF 18 & 21). However, the court docket does not disclose any valid proof of service as to the U.S. Department of Education, the defendant agency named in the Complaint. (See, generally, Dkt.).
When filing a lawsuit against an agency of the United States, such as the U.S. Department of Education, a plaintiff is required to “serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency[.]” Fed.R.Civ.P. 4(i)(2). Here, it appears that plaintiff has properly served the United States, (see Dkt. 7, Proof of Service by Mail); Fed.R.Civ.P. 4(i)(1)(A)-(B) (providing requirements for serving the United States), but has not yet served the agency named in the Complaint, i.e., the U.S. Department of Education, as required by Rule 4(i)(2) of the Federal Rules of Civil Procedure. (See, generally, Dkt.).
All “Rule” references are to the Federal Rules of Civil Procedure.
Rule 4(m) provides that “[i]f 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.” Fed.R.Civ.P. 4(m). Here, the court will order that service be made within a specified time, which provides plaintiff additional time to accomplish service and file a valid proof of service as to the U.S. Department of Education with the court.
This Order is not intended . Nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis.
Based on the foregoing, IT IS ORDERED THAT plaintiff shall file a valid proof of service as to the U.S. Department of Education, including the server's affidavit, no later than February 28, 2022. Plaintiff is cautioned that failure to timely file a valid proof of service shall result in this action being dismissed without prejudice for failure to effect service, for lack of prosecution and/or failure to comply with the orders of the court. See Fed.R.Civ.P. 4 & 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388 (1962).