Opinion
2:23-cv-10553-PA-SHK
07-15-2024
Terri L. Baker v. Louis Dejoy, et al.
Present: The Honorable Shashi H. Kewalramani, United States Magistrate Judge
CIVIL MINUTES-GENERAL
Proceedings (IN CHAMBERS): FINAL ORDER TO SHOW CAUSE
The operative complaint in this matter is Plaintiff Terri L. Baker's (“Plaintiff”) First Amended Complaint (“FAC”) filed on March 11, 2024. Electronic Case Filing Number (“ECF No.”) 10, FAC. On March 14, 2024, the Clerk of Court issued the 60-day summons (“Summons”) for Defendants Louis Dejoy (“Dejoy”), Misty Berry, Joseph Edwards, Linda Johnson, and Sharon West (“Defendants”), all of whom are employees at the United States Post Office (“USPS”). ECF Nos. 11-15, Summons.
On March 27, 2024, Plaintiff filed Proofs of Services (“POS”) for 4 of the 5 Defendants, see ECF Nos. 17-20, POS, but Plaintiff did not file a POS for Defendant Dejoy.
On June 27, 2024, the Court ordered Plaintiff to show cause (“OSC”) why Plaintiff's FAC should not be dismissed for failure to prosecute and for Plaintiff's failure to file a POS demonstrating that the summons and FAC were properly served on all Defendants as required by the Federal Rules of Civil Procedure (“Rules”). ECF No. 21, OSC. Specifically, the Court noted that:
under . . . [Rule] 4(i)(2), an employee of the United States sued in their official capacity must be served by serving the United States and sending a copy of the summons and complaint by registered or certified mail to the employee. Fed.R.Civ.P. 4(i)(2). United States employees sued in their individual capacities must be served by serving the United States and the employee under Rule 4(e), (f), or (g). Fed.R.Civ.P. 4(i)(3). In turn, the United States may be served either by service on the United States Attorney's Office (“USAO”) or the Attorney General of the United States (“USAG”). Fed.R.Civ.P. 4(i)(1)(A)-(B).
Although, service was accepted by a supervisor Jane Doe at the Regional USPS in Long Beach, Legal Department for the employees, see e.g. ECF No. 17, it appears Plaintiff failed to serve the United States because [Plaintiff] does not attach any proof that [Plaintiff] either delivered the Summons and FAC to the USAO or mailed the same by registered or certified mail to the USAO or USAG. Therefore, service has not been properly effectuated on any of Defendants.Id. at 1-2.
On July 3, 2024, Plaintiff responded to the OSC (“Response”) and indicated that Plaintiff “paid process server Robert Glen in Washington, DC 135.00 dollars to serve Louis Dejoy Postmaster General [USPS].” ECF No. 22, Response at 1. Plaintiff attached “a copy of our text conversations where he delivered the Summons to Washington, DC” and “[t]he Summons was received by Lamont Pearson, Executive Assistant Attorney.” Id. Plaintiff also reportedly “asked Robert Glenn to send the March 18, 2024 [POS] to the Court” but Robert Glen filed the POS in the wrong court, which “is the reason why it wasn't in this Court.” Id. at 2.
The Court has read Plaintiff's Response and determined that Plaintiff has still not perfected service on any Defendants because Plaintiff has still not demonstrated that Plaintiff has properly served the United States by serving the Summons and the FAC on either the USAO or the USAG as Rule 4(i)(1)(A)-(B) requires. Instead, Plaintiff alleges that only the Summons was served on Lamont Pearson, who, upon conducting an independent search, the Court has determined is an Executive Legal Administrative Assistant at the USPS and not an attorney or part of the USAO or USAG as Rule 4(i)(1)(A)-(B) requires.
“[S]ervice of process is the means by which a court asserts its jurisdiction over the person[.]” S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007) (citation omitted). “‘Service of a summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant[.]'” Id. (quoting Fed.R.Civ.P. 4(k)). “A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under [Rule] 4.” Direct Mail Specialist, Inc., v. Eclat Computerized Tech., Inc., 840 F.2d 685, 688 (9th Cir. 1988). “[I]n the absence of proper service of process, the district court has no power to render any judgment against the defendant's person or property unless the defendant has consented to jurisdiction or waived the lack of process.” S.E.C., 504 F.3d at 1138-39 (citations omitted).
Accordingly, Plaintiff is ordered to show cause, one final time , by August 9, 2024, why this case should not be dismissed for failure to prosecute, follow Court orders, and perfect service on Defendants. Plaintiff can satisfy this order by perfecting service on Defendants as Rule 4(i)(1)(A)-(B) requires, and by demonstrating the same in a POS filed with the Court by the date listed above. Plaintiff is warned that failure to perfect service on Defendants in complilance of Rule 4(i)(1)(A)-(B) will result in a recommendation that this case be dismissed, with or without prejudice, for Plaitniff's failure to prosecute and follow Court orders and because the Court lacks jurisdiction over unserved defendants. Direct Mail Specialist, Inc., 840 F.2d at 688.
Finally, if Plaintiff requires additional assistance in this matter, Plaintiff is encourage to visit the Pro Se Clinic, where Plaintiff may obtain such assistance. For further information about the clinic, Plaintiff may visit: http://prose.cacd.uscourts.gov/.
IT IS SO ORDERED.