Martha A Montalvo-Ariri v. Johnson & Johnson Inc

Filing 13

MINUTE ORDER IN CHAMBERS ORDER TO SHOW CAUSE RE: FAILURE TO PROSECUTE by Judge Virginia A. Phillips.( Response to Order to Show Cause due by 2/16/2015.) (mrgo)

PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Case No. EDCV 14-01421-VAP (SPx)

Date: February 4, 2015

Title:
MARTHA A. MONTALVO-ARIRI -v- JOHNSON & JOHNSON, INC.
===============================================================
PRESENT:
HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE
Marva Dillard
Courtroom Deputy
ATTORNEYS PRESENT FOR
PLAINTIFFS:

None Present
Court Reporter
ATTORNEYS PRESENT FOR
DEFENDANTS:

None
PROCEEDINGS:

None
ORDER TO SHOW CAUSE RE: FAILURE TO PROSECUTE
(IN CHAMBERS)

On July 11, 2014, Plaintiff Martha A. Montalvo-Ariri ("Plaintiff") filed this action
against Johnson & Johnson, Inc. (Doc. No. 1.) Plaintiff filed a First Amended
Complaint ("FAC"), only naming a new defendant, Ethicon, Inc. ("Ethicon"), on
October 1, 2014. (Doc. No.11.)
To date, Plaintiff has not filed a proof of service indicating that Ethicon was
served with the First Amended Complaint, nor has she submitted evidence to show
efforts made to give notice or given a reason notice should not be required.
Pursuant to Federal Rule of Civil Procedure ("FRCP") 4(m), a plaintiff must serve
summons and complaint on all named defendants within 120 days of filing. When a

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EDCV 14-01421-VAP (SPx)
MARTHA A. MONTALVO-ARIRI v. JOHNSON & JOHNSON, INC.
MINUTE ORDER of February 4, 2015

plaintiff fails to prosecute the case, the court on its own motion may dismiss the case
under FRCP 41(b). See Tolbert v. Leighton, 623 F.2d 585, 586-87 (9th Cir. 1980).
Plaintiff has failed to prosecute this action, and thus it is subject to dismissal.
Though the filing of an amended complaint does not reset the 120 day limit for
service as to any originally named defendants, plaintiffs are allowed an additional
120 days to serve newly named defendants in later pleadings. Bolden v. City of
Topeka, Kansas, 441 F.3d 1129, 1148 (10th Cir. 2006) ("But the 120-day period
provided by Rule 4(m) is not restarted by the filing of an amended complaint except
as to those defendants newly added in the amended complaint."). As Ethicon was
first named as a defendant in the FAC, Plaintiff had 120 days from October 1, 2014
to file a proof of service showing that Ethicon had been served. Plaintiff has not
done so.
Accordingly, the Court ORDERS Plaintiff to show cause, in writing, not later
than February 16, 2015, why this action should not be dismissed without prejudice
for failure to prosecute. Failure to file a response will result in dismissal of this
action.
IT IS SO ORDERED.

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