Fierro v. Ryan et al

Filing 45

ORDER that the Magistrate Judge's Report and Recommendation (Doc. 31 ) is accepted and adopted by the Court. IT IS FURTHER ORDERED that Plaintiff[']s Motion for Reconsideration (Doc. 28 ), construed as a motion for leave to file a second amended complaint, is granted and the Clerk of the Court is directed to file the Second Amended Complaint attached to Doc. 28. FURTHER ORDERED that Defendants Badilla, Houze, Molera, Pitrowsky, Stephan, Fizer, Quintero, Wiggin, Jackson, Tucker, Ryan, Luen, Morales, Rojas, Malachinski, Pratt, Merchant, Rioochi, Stark, Miller, Espinoza, Anderson, Shruff, Thompson, Brown, Stowell, Greeley, Lacrone, and Theodore are dismissed from this action. FURTHER ORDERED that Count Two of the Second Amended Com plaint is dismissed. FURTHER ORDERED that Defendants McCarville, Ochoa, Pruett, Forester, Mcoffy, Smith, Shuster, and Sanders shall respond to Count One of the Second Amended Complaint. FURTHER ORDERED that Defendants Veckcovic and Brower shall respo nd to Count Three of the Second Amended Complaint. FURTHER ORDERED that Defendants Nash and East shall respond to Count Four of the Second Amended Complaint. IT IS FURTHER ORDERED That the Clerk of Court is directed send Plaintiff a service packetinc luding the Second Amended Complaint and this Order, and both summons andrequest for waiver forms for Defendants McCarville, Ochoa, Pruett, Forester, Mcoffy, Smith, Shuster, Sanders, Veckcovic, Brower, Nash, and East. That Plaintiff shall complete and return the service packet to the Clerk of Court within 21 days of the date this Order. Plaintiff is advised that the United States Marshal will not provide service of process if Plaintiff fails to comply with the Court's Order.. Signed by Seni or Judge Paul G Rosenblatt on 3/10/2015. (Attachments: # 1 Service packet letter, # 2 Sample and 1st Dft service packet, # 3 2nd Defendant, # 4 3rd Defendant, # 5 4th Defendant, # 6 5th Defendant, # 7 6th Defendant, # 8 7th Defendant, # 9 8th Defendant, # 10 9th Defendant, # 11 10th Defendant, # 12 11th Defendant, # 13 12th Defendant)(KMG)

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USM-285 is a 5-part form. Fill out the form and print 5 copies. Sign as needed and route as specified below. PROCESS RECEIPT AND RETURN U.S. Department of Justice United States Marshals Service See "Instructions for Service of Process by U.S. Marshal" PLAINTIFF COURT CASE NUMBER DEFENDANT TYPE OF PROCESS NAME OF INDIVIDUAL, COMPANY, CORPORATION. ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO SEIZE OR CONDEMN { SERVE AT ADDRESS (Street or RFD, Apartment No., City, State and ZIP Code) SEND NOTICE OF SERVICE COPY TO REQUESTER AT NAME AND ADDRESS BELOW Number of process to be served with this Form 285 Number of parties to be served in this case Check for service on U.S.A. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE (Include Business and Alternate Addresses, All Telephone Numbers, and Estimated Times Available for Service): Fold Fold Signature of Attorney other Originator requesting service on behalf of: PLAINTIFF TELEPHONE NUMBER DATE DEFENDANT SPACE BELOW FOR USE OF U.S. MARSHAL ONLY-- DO NOT WRITE BELOW THIS LINE I acknowledge receipt for the total number of process indicated. (Sign only for USM 285 if more than one USM 285 is submitted) Total Process District of Origin District to Serve No. Signature of Authorized USMS Deputy or Clerk Date No. I hereby certify and return that I have personally served , have legal evidence of service, have executed as shown in "Remarks", the process described on the individual , company, corporation, etc., at the address shown above on the on the individual , company, corporation, etc. shown at the address inserted below. I hereby certify and return that I am unable to locate the individual, company, corporation, etc. named above (See remarks below) Name and title of individual served (if not shown above) A person of suitable age and discretion then residing in defendant's usual place of abode Address (complete only different than shown above) Date Time am pm Signature of U.S. Marshal or Deputy Service Fee Total Mileage Charges Forwarding Fee including endeavors) Total Charges Advance Deposits Amount owed to U.S. Marshal* or (Amount of Refund*) REMARKS: PRINT 5 COPIES: 1. CLERK OF THE COURT 2. USMS RECORD 3. NOTICE OF SERVICE 4. BILLING STATEMENT*: To be returned to the U.S. Marshal with payment, if any amount is owed. Please remit promptly payable to U.S. Marshal. 5. ACKNOWLEDGMENT OF RECEIPT PRIOR EDITIONS MAY BE USED Form USM-285 Rev. 12/80 AO 398 (Rev. 01/09) Notice of a Lawsuit and Request to Waive Service of a Summons UNITED STATES DISTRICT COURT for the __________ District of __________ Plaintiff v. Defendant ) ) ) ) ) Civil Action No. NOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF A SUMMONS To: (Name of the defendant or - if the defendant is a corporation, partnership, or association - an officer or agent authorized to receive service) Why are you getting this? A lawsuit has been filed against you, or the entity you represent, in this court under the number shown above. A copy of the complaint is attached. This is not a summons, or an official notice from the court. It is a request that, to avoid expenses, you waive formal service of a summons by signing and returning the enclosed waiver. To avoid these expenses, you must return the signed waiver within days (give at least 30 days, or at least 60 days if the defendant is outside any judicial district of the United States) from the date shown below, which is the date this notice was sent. Two copies of the waiver form are enclosed, along with a stamped, self-addressed envelope or other prepaid means for returning one copy. You may keep the other copy. What happens next? If you return the signed waiver, I will file it with the court. The action will then proceed as if you had been served on the date the waiver is filed, but no summons will be served on you and you will have 60 days from the date this notice is sent (see the date below) to answer the complaint (or 90 days if this notice is sent to you outside any judicial district of the United States). If you do not return the signed waiver within the time indicated, I will arrange to have the summons and complaint served on you. And I will ask the court to require you, or the entity you represent, to pay the expenses of making service. Please read the enclosed statement about the duty to avoid unnecessary expenses. I certify that this request is being sent to you on the date below. Date: Signature of the attorney or unrepresented party Printed name Address E-mail address Telephone number AO 85 (Rev. 8/97) Notice, Consent, and Order of Reference - Exercise of Jurisdiction by a United States Magistrate Judge (For Use In Civil Cases With District Judge as Presider) UNITED STATES DISTRICT COURT _______________________________ District of __________________________________________________ Plaintiff NOTICE, CONSENT, AND ORDER OF REFERENCEEXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE v. Case Number: Defendant NOTICE OF AVAILABILITY OF A UNITED STATES MAGISTRATE JUDGE TO EXERCISE JURISDICTION In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P.73, you are hereby notified that a United States magistrate judge of this district court is available to conduct any or all proceedings in this case including a jury or nonjury trial, and to order the entry of a final judgment. Exercise of this jurisdiction by a magistrate judge is, however, permitted only if all parties voluntarily consent. You may, without adverse substantive consequences, withhold your consent, but this will prevent the court’s jurisdiction from being exercised by a magistrate judge. If any party withholds consent, the identity of the parties consenting or withholding consent will not be communicated to any magistrate judge or to the district judge to whom the case has been assigned. An appeal from a judgment entered by a magistrate judge shall be taken directly to the United States court of appeals for this judicial circuit in the same manner as an appeal from any other judgment of a district court. CONSENT TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case hereby voluntarily consent to have a United States magistrate judge conduct any and all further proceedings in the case, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings. Signatures Party Represented Date _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ ORDER OF ASSIGNMENT IT IS HEREBY ORDERED that this case be assigned to ______________________________________________________ United States Magistrate Judge, for all further proceedings and the entry of judgment in accordance with 28 U.S.C. 636(c), Fed.R.Civ.P. 73 and the foregoing consent of the parties. All further documents filed with the court are to carry the following case number ________________________________________. ________________ Date _____________________________________________________________________________________ United States District Judge NOTE: RETURN THIS FORM TO THE CLERK OF THE COURT ONLY IF ALL PARTIES HAVE CONSENTED ON THIS FORM TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE.

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