Opinion
2:11-CV-1538 JCM (NJK)
04-08-2013
ROBERT JOSEPH MCCARTY, Plaintiff, v. JOHN V. ROOS, et al., Defendants.
ORDER
Presently before the court is defendants John Roos and Joseph Koen's, in their official capacities, motion for extension of time to respond to amended complaint. (Doc. # 135). Defendants request an extension of time to respond for three reasons.
The court notes that this motion is made on behalf of Roos and Koen in their official capacities only. Defendants represent that neither of them have been properly served in their individual capacity, pursuant to this court's order (see doc. # 112). As such, the instant motion is not construed as a waiver of service on behalf of defendants Roos and Koen in their individual capacities.
First, defendants argue that pro se plaintiff's amended complaint seeks to sue a number of previously unnamed federal officials, in both their individual and official capacities, as well as two previously unnamed federal agencies. Thus, defendants argue that, in the interest of efficiency, that all federal officials and entities provide their response to the amended complaint at the same time. The court agrees with this approach.
The court notes that this extension will likely not precisely coincide with the deadline for other federal defendants to respond; however, this extension is warranted considering that it does not appear that any other federal defendant has been served with the second amended complaint.
Second, defendants argue that this extension is warranted to permit pro se plaintiff time to attempt service and to allow defendants to determine whether service has been properly effectuated. The court finds the request reasonable provided that no service has been made to any federal defendant other than Roos and Koen. Further, the court notes that plaintiff did not successfully serve defendants Roos and Koen, in their individual capacities, with his previous complaint. This proposed deadline would pro se permit plaintiff 30 days to effectuate service and federal defendants, sued in their individual capacities, 60 days to respond. See Fed. R. Civ. P. 12(a)(3). Provided the challenges of serving federal government officials in their individual capacities internationally, the court finds such delay warranted.
The court notes that under Fed. R. Civ. P. 4(m), plaintiff is afforded 120 days from the day the complaint is filed to serve defendants. This order does not constrain the time in which pro se plaintiff can serve defendants as provided for under the Federal Rules of Civil Procedure.
Third, counsel represents that he has only recently been assigned to the case because pro se plaintiff has sued the Department of Justice attorneys who had been handling the lawsuit. Counsel requests time to familiarize himself with this matter and to determine which newly named defendants will be represented by the Department of Justice. The court finds the request reasonable.
Good cause appearing,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants' motion for extension of time to respond to amended complaint (doc. # 135) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that defendants Roos and Koen have up to, and including, July 8, 2013, to respond to plaintiff's amended complaint.
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UNITED STATES DISTRICT JUDGE