Opinion
No. CIV S-06-2864 FCD JFM PS.
January 11, 2008
ORDER
Defendant Angela Eisentrout's motion to dismiss came on regularly for hearing January 11, 2008. Plaintiff appeared in propria persona. Jonathan B. Paul made a special appearance on behalf of defendant Eisentrout. There was no appearance for defendants County of Sacramento, Lou Blanas and Mark Iwasa. Upon review of the motion and the documents in support, upon hearing the arguments of counsel and plaintiff and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
Defendant Eisentrout's motion to dismiss, filed October 29, 2007, was initially noticed for hearing on December 6, 2007. Plaintiff Harry McEvers, proceeding pro se, failed to timely file an opposition. Hearing on the pending motion was continued to January 11, 2008. Plaintiff was granted an extension of time to December 27, 2007 to file opposition. Plaintiff was cautioned that failure to file opposition and appear at the hearing would be deemed as a statement of non-opposition to the granting of the motion. Local Rules 78-230(c); 78-230(j) and 11-110. Plaintiff filed no opposition.
Plaintiff stated he has now located defendant Eisentrout's home address and can accomplish service of process within the next two weeks. Counsel advised the court that defendant Eisentrout has not granted his law firm authority to accept service of process on her behalf. Good cause appearing, plaintiff will be granted a second extension of time in which to serve defendant Eisentrout. (See August 23, 2007 Order at 2-3.) Plaintiff shall serve defendant Eisentrout no later than February 1, 2008.
Defendant's motion to dismiss for insufficiency of service of process will be partially granted. The October 9, 2007 service of process on defendant Eisentrout was ineffective based in part on plaintiff's failure to serve summons with the complaint. Plaintiff is reminded of his obligation to serve the summons with the complaint. "A summons shall be served together with a copy of the complaint." Fed.R.Civ.P. 4(c). Plaintiff is cautioned that failure to properly serve defendant Eisentrout no later than February 1, 2008 will likely result in a recommendation that defendant Eisentrout be dismissed from this action.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant Eisentrout's October 29, 2007 motion to dismiss is partially granted; the October 9, 2007 service of process on defendant Eisentrout was ineffective based in part on plaintiff's failure to include summons pursuant to Fed.R.Civ.P. 4(c).
2. Plaintiff is granted an extension of time in which to accomplish service of process on defendant Eisentrout. No later than February 1, 2008, plaintiff shall accomplish service on defendant Eisentrout. No further extensions of time will be granted.