Opinion
No. CIV S-06-1993 FCD GGH P.
September 25, 2007
ORDER
Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. By order filed June 27, 2007, service of process of plaintiff's amended complaint, filed on December 1, 2006, was directed upon defendants MTA Oliver; Dr. B. Lee; Kim Stocker; Dr. P. Sahota. On August 21, 2007, defendants Lee, Sahota and Stocker filed an answer to the amended complaint.
Although defendant Oliver has apparently not yet responded, there has as yet been no filing of an unexecuted request for waiver of service as to this individual.
Before the answer was filed, plaintiff prematurely filed a document he entitled a "joint motion for summary judgment," predicated primarily on the mistaken premise that defendants had failed to respond timely to his amended complaint, a defective motion which he also failed to serve upon defendants. Under Fed.R.Civ.P. 12(a)(1)(B), if there has been a timely waiver of the summons by request under Rule 4(d), a defendant has 60 days to file an answer. Although the waivers of service of process have not yet been filed in the case docket, the answer was filed within the 60-day requisite time period. Plaintiff's defective motion for summary judgment will be vacated. Defendants will be directed to inform the court within ten days whether defendant Oliver has received a request for waiver of service of the summons and has waived service of process, and, if so, to file an answer, or a motion for joinder on that defendant's behalf in the August 21, 2007, answer.
Accordingly, IT IS ORDERED that:
1. Plaintiff's defective and inapposite "joint motion for summary judgment," filed on July 31, 2007, is vacated;
2. Within ten days, defendants' counsel must inform the court as to whether defendant Oliver has received a request for waiver of service and has waived service of process, and, if so, must file an answer or a motion for joinder in the August 21, 2007 answer on that defendant's behalf.