Opinion
CASE NO.: 3:03-cv-275-MEF (WO-Not Recommended for Publication).
March 12, 2008
ORDER
This action was filed on March 12, 2003. With respect to two of the defendants to this action, Richard Homa and Michael Gause, it appears that Plaintiffs eventually served the summons and Complaint on someone who has signed for Richard Homa and Michael Gause. Neither Richard Homa nor Michael Gause has ever answered, appeared, or otherwise responded to this action. Nevertheless, Plaintiffs have taken no steps to obtain a default against either Richard Homa or Michael Gause. On March 10, 2008, the Court entered an Order (Doc. # 53) directing the Plaintiffs to show cause by no later than March 17, 2008, why their claims against Richard Homa and Michael Gause should not be dismissed for want of prosecution. On March 11, 2008, Plaintiffs filed a "response" to the Court's Order in which they requested additional time to perfect service on Richard Homa and Michael Gause.
Plaintiffs have failed in any way to adequately explain their conduct in this action with respect to Richard Homa and Michael Gause. Court records indicate that Richard Homa and Michael Gause were served while they were incarcerated. If Plaintiffs have some reason to believe that is inaccurate, they have failed to share that information with the Court. Additionally, Plaintiffs were previously ordered to serve Richard Homa by no later than August 26, 2004. If they have not done so by this late date and have not sought to extend that deadline before March 11, 2008, the Court be unable to see any cause for not dismissing the claims against Richard Homa for failure to timely serve him. Finally, if it is true that Plaintiffs have not previously properly served Richard Homa and Michael Gause in this action which was commenced in March of 2003, they have failed to adequately document what good cause there could be for their failure to comply with the Federal Rules of Civil Procedure with respect to serving these defendants.
With these issues in mind, the Court will allow Plaintiffs one more chance to address the Courts concerns and show the factual and legal grounds that would prevent this Court from dismissing this action against Richard Homa and Michael Gause either for want of prosecution or for want of timely service. Plaintiffs must do so by no later than March 17, 2008.