Opinion
CV 22-3284 FMO (JEMx)
08-18-2022
Micquawan Warr v. United States of America, et al.
Present The Honorable Fernando M. Olguin, United States District Judge
CIVIL MINUTES - GENERAL
Proceedings: (In Chambers) Order to Show Cause re: Proof of Service
The court is in receipt of the Declaration of Kevin M. Davis, Esq. in Opposition to OSC Re: Proof of Service (Dkt. 10, “Declaration”), filed by plaintiff Micquawan Warr's (“plaintiff”) counsel, and concludes as follows.
Plaintiff filed his Complaint against defendants United States of America, United States Postal Service, and Roberto Carlos Castano Jr. (collectively, “defendants”) on May 13, 2022. (See Dkt. 1, Complaint). On August 8, 2022, plaintiff was ordered to show cause why this action should not be dismissed for lack of prosecution for failure to complete service of the summons and Complaint on defendants as required by Rule 4(m) of the Federal Rules of Civil Procedure. (See Dkt. 9, Court's Order of August 8, 2022). Plaintiff's counsel filed the Declaration on August 15, 2022, which states that plaintiff effected service on the United States of America and United States Postal Service, although no proofs of service have been filed as of the filing date of this Order. (See Dkt. 10, Declaration at ¶¶ 2-3). The Declaration further states that “Defendant Roberto Carlos Jr. Castano is also out for service at this time. We are hoping to have service complete by the time of this hearing.”2 (Id. at ¶ 4).
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(s) of service with the court. Plaintiff is admonished that failure to effect service in accordance with the applicable provisions of Rule 4(i) shall result in this action being dismissed without prejudice.
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:
1. Plaintiff shall file a valid proof of service(s), including the server's affidavit, no later than August 31, 2022.
2. Plaintiff is cautioned that failure to timely file a valid proof(s) of service by the deadline set forth above 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).
3. The Order to Show Cause Re: Dismissal Re: Lack of Prosecution (Dkt. 9, Court's Order of August 8, 2022) is hereby continued pending compliance with paragraph one above.