Opinion
Civil No. 05cv1895-L(LSP).
April 5, 2006
ORDER DISMISSING ACTION WITHOUT PREJUDICE
On March 27, 2006, this matter came on regularly for an order to show cause hearing why the action should not be dismissed for failure to serve under Federal Rule of Civil Procedure 4(m). Plaintiff did not appear, nor file any documents with the Court.
This action seeking relief under the Fair Housing Act of 1968 was filed on October 4, 2005. A First Amended Complaint was filed on October 14, 2005, but no new Defendants were named in that pleading. Accordingly, Defendants should have been served no later than February 1, 2006. On February 26, 2006, Plaintiff requested a default be entered against Defendant Anne G. Bemis individually and as Trustee of the Frank and Anne Bemis Trust Agreement. The Clerk's Office did not enter default because there was no proof of service of the First Amended Complaint.
This Court calendared this hearing in an order dated February 28, 2006. There has been no response to the notice of order to show cause. However, on March 8, 2006, Plaintiff filed a document entitled "Proof of Service of Complaint." That document states that:
Plaintiff Lynette Jackson completed service of Defendant Anne G. Bemis, individually and as Trustee of the Frank and Anne Bemis Trust (Defendant), on January 24, 2006. Defendant has failed to file an answer or a responsive pleading within the statutorily required time. On February 24, 2006, Plaintiff requested a default against Defendant as Defendant has not appeared in this matter.
The Clerk's Office did not file that document as a return of service because it does not indicate what was served, when, upon whom, their relationship to Defendant, nor was it signed by the server. Having reviewed the document, the Court finds it does not comply as a valid proof of service because it does not state: (1) what was served; (2) the place of service; (3) the person/entity served; or (4) the manner of service. See William W. Schwarzer et al., California Practice Guide: Federal Civil Procedure Before Trial, § 5:315 at 5-62.9 (The Rutter Group 2005). Accordingly, IT IS HEREBY ORDERED this action is DISMISSED WITHOUT PREJUDICE under Rule 4(m).
IT IS SO ORDERED.