Summary
applying D. Kan. R. 15.1, which requires a proposed amended complaint to be attached to the motion to amend
Summary of this case from JONES v. TWO UNKNOWN DOC GUARDSOpinion
CIVIL ACTION No. 03-2568-CM
April 20, 2004
MEMORANDUM AND ORDER
Plaintiff filed the complaint in this case on November 10, 2003. On April 1, 2004, Magistrate Judge O'Hara ordered plaintiff to show good cause in writing, on or before April 16, 2004, why service of the summons and complaint was not made upon defendant within 120 days from the filing of the complaint and why the case should not be dismissed for failure to prosecute (Doc. 6). Plaintiff, appearing pro se, timely filed a response to the court's show cause order, as well as a Motion to Amend Complaint (Docs. 8 and 7, respectively).
I. Show Cause Order
In response to the court's show cause order, plaintiff claims that he received from the clerk of this court summons for service on only two of the nine defendants in his case. Plaintiff states that he contacted the court regarding summons for the other seven defendants and "was told to mail copies." Plaintiff claims his copies were stolen from his residence, and that he desires to pursue this case because his personal rights have been violated.
In Espinoza v. United States, 52 F.3d 838 (10th Cir. 1995), the Tenth Circuit set out the inquiry a district court should make before dismissing a claim pursuant to Federal Rule of Civil Procedure 4(m) for failure to serve process:
The preliminary inquiry under Rule 4(m) is whether the plaintiff has shown good cause for the failure to timely effect service. In this regard, district courts should continue to follow the cases in this circuit that have guided that inquiry. If good cause is shown, the plaintiff is entitled to a mandatory extension of time. If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted. At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service.Espinoza, 52 F.3d at 841. In this case, the court concludes that plaintiff has not clearly set forth good cause for his failure to serve defendants. The court therefore determines that plaintiff is not entitled to a mandatory extension of time.
However, pursuant to Espinoza, the court next considers whether a permissive extension of time is warranted. The court finds that, in these circumstances, an extension of time in which to serve defendants is appropriate. The court prefers to decide cases on their merits rather than on technicalities. See Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982). Accordingly, the court exercises its discretion and hereby grants an extension of time for plaintiff to effect proper service.
II. Motion to Amend Complaint
Plaintiff seeks leave to amend his complaint to add defendants. D. Kan. Rule 15.1(a) provides:
In addition to the other requirements of Local Rules 7.1 through 7.5, a motion to amend shall set forth a concise statement of the amendments sought to be allowed, with the signed original, and one copy of the proposed amended pleading attached (Emphasis added.)
The instant motion does not comply with the above-referenced rule in that plaintiff has failed to provide a copy of his proposed amended complaint.
III. Order
IT IS THEREFORE ORDERED that plaintiff must, on or before May 21, 2004, effectuate proper service of process on defendants. Should plaintiff fail to effectuate service of process on defendants by May 21, 2004, this case will be dismissed. IT IS FURTHER ORDERED that plaintiff's Motion to Amend Complaint (Doc. 7) is denied without prejudice. Plaintiff may reassert his Motion to Amend Complaint in compliance with D. Kan. Rule 15.1(a).
Copies of this order shall be mailed to plaintiff by certified and regular mail.