Opinion
No. CIV S 07-0022 GGH P.
May 8, 2008
ORDER
By Order, filed on April 4, 2008 (# 72), defendants were directed to show cause why defendant Luke Spence should not be found in default. In their April 24, 2008 (#76) response, defendants make clear that they had a good faith belief that defendant Spence had not been served. Defendants seek leave to file an amended answer to include defendant Spence. As defendants note this litigation is in its early stages and not all parties have yet been served. As to granting leave to file an amended answer to include defendant Spence, "Rule 15(a) declares that leave to amend 'shall be freely given when justice so requires'; this mandate is to be heeded." Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227 (1962). The court finds that defendant Spence should not in this instance be prejudiced by his counsel's apparently inadvertent omission. Jornigan v. N.M. Mut. Cas. Co., 228 F.R.D. 661, 664 (D. N. M. 2004). Nor does the court find that plaintiff will be unduly prejudiced by permitting an amended answer at this stage of the case. The court will deem the show cause order discharged and will grant defendants leave to file an amended answer to include defendant Spence.
Defendants were also tasked with locating, if possible, the business addresses for two unserved defendants: Tony and Jamolodin. Defendants have now identified a location where they believe that "Nurse Tony," whose full name is apparently "Tony Thomas," can be reached and have filed and served that address. As to defendant Jamolodin, they were unable to locate anyone by that name, suggesting (reluctantly) that plaintiff may have meant to name a Deputy Joseph Oldham. However, in a filing of his own, dated March 11, 2008 (# 75), plaintiff is adamant that the actual name of defendant "Jamolodin" is J. Rademaker. Therefore, J. Rademaker will be substituted in as a defendant in place of defendant "Jamolodin." Also, defendant Tony will be identified in future by his full name, Tony Thomas. Plaintiff must provide the information needed to serve defendants Tony Thomas and J. Rademaker within thirty days upon the two USM-285 forms to be provided to him with this order. Should he fail to do so, these defendants will be dismissed pursuant to Fed.R.Civ.P. 4(m).
Finally, defendants ask if defendant Luke should respond to discovery requests previously disregarded by the court as improperly filed. Defendants should be aware that they are under an obligation to respond to any discovery requests that have been properly served upon them.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants have discharged the show cause Order, filed on April 4, 2004 (# 72), by their filing of April 24, 2008 (# 76); defendant Luke Spence will not be deemed in default and defendants are granted leave to file an amended answer, within 20 days, to include defendant Spence;
2. Pursuant to plaintiff's filing of April 11, 2008 (# 75), defendant Rademaker is substituted in for the apparently erroneously named defendant "Jamolodin";
3. The Clerk of the Court is directed to send plaintiff two USM-285 forms with this order; plaintiff must provide the information the court needs to serve defendants Tony Thomas (formerly identified only as Tony) and J. Rademaker on these forms within thirty (30) days; failure to do so will result in the dismissal of defendants Thomas and Rademaker from this action, pursuant to Fed.R.Civ.P. 4(m).
4. If defendant Spence has been properly served with plaintiff's discovery requests, defendants must respond.
NOTICE OF SUBMISSION OF DOCUMENTS
Plaintiff hereby submits the following documents in compliance with the court's order filed __________________:2
___ completed USM-285 forms DATED: ____________________________________ Plaintiff