Opinion
2:23-cv-00295-CKD
08-21-2023
HARISH KUMAR, ET AL., Plaintiffs, v. EMILIA BARDINI, ET AL., Defendants.
ORDER
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
Plaintiff filed this mandamus action against defendants, Director of the San Francisco Asylum Office Emilia Bardini, U.S. Department of Homeland Security Secretary Alejandro Mayorkas, and U.S. Attorney General Merrick Garland on February 17, 2023. (See ECF No. 1.) Plaintiff was required to serve defendants within 90 days, i.e., by May 18, 2023. Fed.R.Civ.P. 4(m). On August 10, 2023, having received no proof of service or appearances by defendants, the court ordered plaintiff to show cause regarding plaintiff's failure to serve defendants. (ECF No. 5.)
On August 11, 2023, plaintiff's counsel timely filed a response to the order informing the court that plaintiff's counsel suffered a stroke on February 23, 2023 and was away from the office until August 7, 2023. (ECF No. 6). Attached to plaintiff's response was a copy of a cover letter sent by certified mail to the U.S. Attorneys' Office in Sacramento, dated August 11, 2023, which was submitted as proof of service. (Id. at 3.)
The court finds plaintiff has shown good cause for the failure to serve and therefore discharges the order to show cause. However, as contents of plaintiff's response suggest that service is not compliant with Federal Rule of Civil Procedure 4(i), the court informs plaintiff of the service requirements and grants plaintiff an extension of time to effect service.
Service requirements under Rule 4(i)
To serve a United States agency, corporation, officer, or employee, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee. Fed.R.Civ.P. 4(i)(2).
To serve the United States a party must:
(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought--or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk-or (ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;
(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.
Here, plaintiff's cover letter lists only the U.S. Attorneys' Office in Sacramento. (ECF No. 6 at 3.) As plaintiff has not served the U.S. Attorney General in Washington D.C. or defendants Emilia Bardini and Alejandro Mayorkas, plaintiff's service is not compliant with Rule 4(i).
Because plaintiff has shown good cause for failure to serve, plaintiff is granted an additional 30 days to serve defendants and shall file proof of service with the court within ten days of service.
ORDER
Accordingly, the court HEREBY ORDERS that:
1. This order to show cause be discharged for good cause shown;
2. Within 30 days of this order plaintiff serve defendants; and
3. Within ten days of service, plaintiff shall file proof of service with the court.