Opinion
21-cv-01665-JVS
12-10-2021
Cai Linshan v. Alejandro Mayorkas et al.
Present: The James V. Selna, U.S. District Court Judge.
CIVIL MINUTES - GENERAL
Proceedings: [IN CHAMBERS] Order Regarding Order to Show Cause
The Court has preliminarily reviewed Cai Linshan's (“Linshan”) complaint and proof of service. See Dkt. Nos. 1, 7.
Linshan named Alejandro Mayorkas (“Mayorkas”) in his official capacity as Secretary of the Department of Homeland Security, Tracy Renaud (“Renaud”) in her official capacity as Director of the United States Citizenship and Immigration Services (“USCIS”), Jennifer B. Higgins (“Higgins”) in her official capacity as the Associate Director of the USCIS Asylum Division, and David M. Radel (“Radel”)in his capacity as the Director of the Los Angeles Asylum Office. See Dkt. No. 1.
The Court is in receipt of only one certificate of service, with a summons listing the names and titles of Mayorkas, Renaud, Higgins, and Radel and receipt of delivery via certified mail to Mayorkas, Higgins, Radel, the Civil Process Clerk at the office of the U.S. Attorney for the Central District of California, and the U.S. Attorney General. See Dkt. No. 7. There is no receipt of delivery to Renaud, and the Proof of Service is signed by Linshan, who is a party to this action.
Federal Rule of Civil Procedure 4(c) provides that “[a]ny person who is at least 18 years old and not a party may serve a summons and complaint.”
Federal Rule of Civil Procedure 4(i) requires, in part, the following:
(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.
(1) United States. To serve the United States, a party must:
(A)(i) 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
(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;
(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.
(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.
(3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).Fed. R. Civ. P. 4(i). Accordingly, Plaintiffs have failed to properly serve all parties.
Therefore, the Court, on its own motion, hereby ORDERS Plaintiffs to Show Cause (OSC) in writing no later than January 5, 2022, why this action should not be dismissed for lack of prosecution. As an alternative to a written response by Plaintiffs, the Court will consider the filing of the proofs of service of summons and complaint as an appropriate response to this OSC, on or before the above date.
Absent a showing of good cause, an action shall be dismissed if the summons and complaint have not been served upon all defendants within 90 days after the filing of the complaint. Fed.R.Civ.P. 4(m). The Court may dismiss the action prior to the expiration of such time, however, if plaintiff(s) has/have not diligently prosecuted the action.
It is the plaintiff's responsibility to respond promptly to all orders and to prosecute the action diligently, including filing proofs of service and stipulations extending time under Rule 55 remedies promptly upon default of any defendant. All stipulations affecting the progress of the case must be approved by the Court. Local Rule 7-1.
IT IS SO ORDERED.