Opinion
CV 21-4802 MWF (PVCx)
10-21-2021
Skeino, LLC, et al. v. April Reis, et al. No
Present: The Honorable: MICHAEL W. FITZGERALD, United States District Judge
CIVIL MINUTES - GENERAL
Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE
The Complaint in this matter was filed on June 13, 2021. (Docket No. 1). Pursuant to Rule 4 of the Federal Rules of Civil Procedure, the deadline to serve the Summons and Complaint was September 13, 2021.
On July 9, 2021, the Court filed an Order to Show Cause Re: Subject Matter Jurisdiction ("OSC SMJ"). (Docket No. 15). In response to the OSC SMJ, Plaintiffs filed a Response on July 15, 2021; Plaintiffs requested and the Court granted an extension of time to for Plaintiffs to file a First Amended Complaint. (Docket No. 17). On August 15, 2021, Plaintiffs filed a First Amended Complaint ("FAC"). (Docket No. 19).
On August 23, 2021, the Court filed an Order to Show Cause re dismissal for lack of prosecution ("OSC LOP"). (Docket No. 20). The deadline to respond to the OSC LOP was September 13, 2021. In response to the OSC LOP, Plaintiffs filed a Proof of Service - Acknowledgement of Service ("POS") on September 11, 2021. (Docket No. 21). The POS stated that service was made pursuant to Fed.R.Civ.P. Rule 5(b).
The OSC LOP referred to service of the Summons and First Amended Complaint pursuant to Fed.R.Civ.P. Rule 4(m). The POS filed by Plaintiffs states that the "summons and complaint" were served by mail pursuant to Fed.R.Civ.P. Rule 5(b) by a member of the Bar of this Court.
While Fed.R.Civ.P. Rule 5(a)(1)(B) does govern the service of "a pleading filed after the original complaint ...," it would not apply here because service was never properly made pursuant to Fed.R.Civ.P. Rule 4. Further, Fed.R.Civ.P. Rule 5(a)(2) states, ".. .But a pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4." The FAC includes a new claim for relief.
The Court will allow Plaintiffs one final opportunity to show cause why this action should not be dismissed for lack of prosecution. In response to this ORDER TO SHOW CAUSE, the Court will accept the following no later than NOVEMBER 5, 2021
■ BY PLAINTIFFS: PROOFS OF SERVICE of Summons and FAC on Defendants. The proofs of service must reflect proper service pursuant to Fed.R.Civ.P. Rule 4. AND/OR
■ BY DEFENDANTS: RESPONSES TO THE FAC or an appropriate stipulation to extend the time within which Defendants must respond to the FAC.
No oral argument on this matter will be heard unless otherwise ordered by the Court. See Fed. R. Civ. P. 78; Local Rule 7-15. The Order will stand submitted upon the filing of the response to the Order to Show Cause. Failure to respond to the Order to Show Cause by November 5, 2021 will result in the dismissal of this action.
IT IS SO ORDERED.