Opinion
EDCV 21-175-JWH (KK)
09-03-2021
Kim A.[1] v. Kilolo Kijakazi, Acting Commissioner of Social Security[2]
CIVIL MINUTES-GENERAL
KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
Proceedings: (In Chambers) Order to Show Cause Why Action Should Not Be Dismissed for Failure to Prosecute and Comply with Court Orders
I. BACKGROUND
On January 29, 2021, Plaintiff Kim A. (“Plaintiff”) filed a Complaint challenging the denial of Plaintiff's applications for Title II Disability Insurance Benefits and/or Title XVI Supplemental Security Income by the Commissioner of the Social Security Administration (“Defendant”). ECF Docket No. (“Dkt.”) 1.
On February 2, 2021, the Court issued a Case Management Order (“CMO”) instructing Plaintiff to “promptly serve the summons and complaint on the Commissioner in the manner required by Rule 4(i) of the Federal Rules of Civil Procedure and Title 20 of the Code of Federal Regulations, section 423.1” and “electronically file a proof of service showing compliance with this paragraph within thirty (30) days after the filing of the complaint.” Dkt. 9 at 1-2 (emphasis added). Pursuant to Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure, to serve the United States, a party must “deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought-or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk-” or “send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office[.]” Fed.R.Civ.P. 4(i)(1)(A).
On February 3, 2021, Plaintiff filed a proof of service of the summons and Complaint purporting to show service on Defendant was completed on February 3, 2021. Dkt. 10. The proof of service showed service upon the “Civil Process Clerk at the Office of the U.S. Attorney of the Central District of CA” at the “Riverside Branch office.” Id. at 2.
II. DISCUSSION
Under Federal Rule of Civil Procedure 41(b), the Court may dismiss an action with prejudice for failure to prosecute or failure to comply with any court order. See Fed.R.Civ.P. 41(b). Here, Plaintiff improperly served the United States by mailing copies of the summons and Complaint to the incorrect address for the Civil Process Clerk of the United States Attorney's Office. The Civil Process Clerk for the United States Attorney's Office in the Central District of California is not in Riverside, California, but in Los Angeles, California. See Service of Process on the United States Attorney, United States Department of Justice, https://www.justice.gov/usao-cdca (last visited Sept. 3, 2021). Consequently, under Rule 41(b), the Court may properly dismiss the instant action without prejudice for failure to prosecute and comply with a court order. See Bennett v. Colvin, No. CV 12-10317-PA (PJW), 2013 WL 3233420, at *1 (C.D. Cal. June 26, 2013) (dismissing pro se social security action under Rule 41(b) where plaintiff failed to file proof of service on defendant despite court order). However, before dismissing this action, the Court will afford Plaintiff an opportunity to explain Plaintiff's failure to properly serve Defendant and file a proof of service as directed by the CMO.
III. ORDER
Accordingly, Plaintiff is ORDERED TO SHOW CAUSE, in writing, why this action should not be dismissed for failure to prosecute and/or comply with court orders. Plaintiff shall have up to and including September 10, 2021, to respond to this Order. Plaintiff is cautioned that failure to timely file a response to this Order will be deemed by the Court consent to the dismissal of this action without prejudice.
IT IS SO ORDERED.