Opinion
CV 21-4840 FMO (MARx)
10-01-2021
Phon Chei v. United States Postal Service, et al.
CIVIL MINUTES - GENERAL
The Honorable Fernando M. Olguin, United States District Judge
Proceedings: (In Chambers) Order to Show Cause Re: Dismissal Re: Lack of Prosecution
Having reviewed and considered plaintiff Phon Chei's (“plaintiff”) Request to Receive an Extension [ ] (Dkt. 13, “Request”), the court concludes as follows.
On June 14, 2021, plaintiff filed a complaint asserting a claim under the Federal Torts Claim Act based on the allegedly negligent acts of a United States Postal Service employee. (See Dkt. 1, Complaint). On September 15, 2021, the court issued an order directing plaintiff to show cause why this action should not be dismissed for lack of prosecution after plaintiff failed to serve the summons and complaint on defendants within the 90-day deadline imposed by Rule 4(m) of the Federal Rules of Civil Procedure. (Dkt. 12, Court's Order of September 15, 2021). Plaintiff responded by requesting additional time and stating that COVID restrictions had impeded service of process by her process servers. (See Dkt. 13, Request at 1).
Unless otherwise specified, all references to “Rules” shall be to the Federal Rules of Civil Procedure.
As explained in the Court's Order of September 15, 2021, (see Dkt. 12), absent a showing of good cause, an action must be dismissed without prejudice if the summons and complaint are not served on a defendant within 90 days after the complaint is filed. Fed.R.Civ.P. 4(m). Further, service of process for a federal agency must comply with the procedures set forth in Rule 4, which provides that “[t]o 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.” Id. at 4(i)(2). “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--or1
(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.Id. at 4(i)(1).
The court finds good cause for a brief extension of time for plaintiff to serve the summons and complaint on defendants. However, the court notes that plaintiff bears responsibility for effecting timely service of process that complies with Rule 4.
This Order is not intended . Nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis.
Based on the foregoing, IT IS ORDERED THAT:
1. Plaintiff's Request to Receive an Extension of Time [ ] (Document No. 13) is granted in part and denied in part.
2. Plaintiff shall file a valid proof of service no later than October 14, 2021. Plaintiff is cautioned that failure to timely file a valid proof of service shall result in this action being dismissed without prejudice for failure to effect service, for lack of prosecution and/or failure to comply with the orders of the court. See Fed.R.Civ.P. 4 & 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388 (1962). 2