Opinion
SACV 21-01472 JVS (DFMx)
10-21-2021
Fernando Machia Machado v. Merrick Garland et al
CIVIL MINUTES - GENERAL
James V. Selna, U.S. District Court Judge
Proceedings: [IN CHAMBERS] Order Regarding Order to Show Cause
The Court has preliminarily reviewed Plaintiff Fernando Machia Machado's (“Machado”) complaint and proof of service. See Dkt. Nos. 1 and 9.
Machado named Merrick Garland (Attorney General of the United States), Alejandro Mayorkas (Secretary of the Department of Homeland Security), Ur Mendoza Jaddou (Director of the United States Citizenship and Immigration Services), and David Lester (District Director for the Santa Ana Field Office of U.S. Citizenship and Immigration Services).
The proof of service states that a copy of the summons and complaint was served “in the manner as provided in FRCivP 5(b)” by mailing it to: (1) Attorney General, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, Washington DC 20530-0001; (2) Office of the General Counsel, U.S. Department of Homeland Security, 2707 Martin Luther King Jr. Ave, SE, Mail Stop 0485, Washington DC 20528-0485; and (3) Civil Process Clerk, Office of the United States Attorney, Room 7516, Federal Building, 300 North Los Angeles Street, Los Angeles, California, 90012. See Dkt. No. 19.
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 serve all parties.
Therefore, the Court, on its own motion, hereby ORDERS Plaintiffs to Show Cause (OSC) in writing no later than December 7, 2021, 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.