Opinion
CV 21-7085 FMO (JEMx)
12-14-2021
Rachel English v. Bestbuy Co., Inc., et al.
Present: The Honorable Fernando M. Olguin, United States District Judge
CIVIL MINUTES - GENERAL
Proceedings: (In Chambers) Order to Show Cause re: Proof(s) of Service
On September 2, 2021, pro se plaintiff Rachel English (“plaintiff”) filed her Complaint against defendants BestBuy Co., Inc. and BestBuy Stores, L.P., (“defendants”). (Dkt. 1, Complaint). Plaintiff filed a First Amended Complaint (“FAC”) on September 29, 2021, and a Second Amended Complaint (“SAC”) on November 24, 2021, against the same defendants. (See Dkt. 10, FAC; Dkt. 15, SAC). However, the court docket does not disclose any valid proof of service or answer by defendants. (See, generally, Dkt.).
These defendants are listed on the caption of plaintiff's Complaint, although the body of her Complaint refers generally to “Bestbuy, Corporation” or “Bestbuy.” (See, e.g., Dkt. 1, Complaint at 2).
Plaintiff filed a proof of service on October 20, 2021, as to Bestbuy Co., Inc., (see Dkt., 17, Proof of Service by Mail), but the proof of service does not comply with Rule 4(h) of the Federal Rules of Civil Procedure, which provides the requirements for serving a corporation. See Fed. R. Civ. Pro. 4(h).
All “Rule” references are to the Federal Rules of Civil Procedure, unless otherwise indicated.
Pursuant to Rule 4(1), plaintiff must prove that she served the summons and complaint by filing an affidavit signed by the server. See Fed.R.Civ.P. 4(1). Plaintiff may consider using the sample affidavit form available from Public Counsel's Federal Pro Se Clinic, at https://www.publiccounsel.org/wp-content/uploads/2021/11/Guide-Serving-a-Corporation.pdf. (Guide for Serving a Corporation).
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 of service with the court.
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. The proof of service (Document No. 17) is hereby stricken.
2. Plaintiff shall file a valid proof of service(s), including the server's affidavit, no later than January 3, 2022. Plaintiff is cautioned that failure to timely file a valid proof of service 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).