All Points Capital Corporation v. Foster and Sons General Engineering Contractors, Inc. et al

Filing 10

ORDER TO SHOW CAUSE directing plaintiff to show cause, in writing, by 12/2/2010, re issues with the service of summons and complaint, and further ORDERING the Initial Scheduling Conference currently set for hearing on 11/22/2010 before Magistrate Judge Gary S. Austin VACATED, and SETTING a Status Conference for 12/16/2010 at 10:00 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin; order signed by Magistrate Judge Gary S. Austin on 11/18/2010. (Rooney, M)

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All Points Capital Corporation v. Foster and Sons General Engineering Contractors, Inc. et al Doc. 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 On May 7, 2010, Plaintiff All Points Capital Corporation filed a complaint with this Court. (Doc. 2.) On May 10, 2010, the Court issued summonses to Defendants Foster and Sons General Engineering Contractors, Inc., James B. Foster and Otilia B. Foster. (Docs. 4-6.) To date, Plaintiff has filed no documents to show proof of service of the summons and complaint on any of the named Defendants to establish it has complied with Rule 4(l) and (m) of the Federal Rules of Civil Procedure, nor have any of the aforementioned Defendants appeared in this action. ALL POINTS CAPITAL CORPORATION, a ) New York corporation, ) ) Plaintiff, ) ) v. ) ) FOSTER AND SONS GENERAL ) ENGINEERING CONTRACTORS, INC., a ) California corporation, JAMES B. FOSTER, ) an individual, and OTILIA T. FOSTER, an ) individual, ) ) Defendants. ) _____________________________________ ) 1:10-cv-00801 AWI GSA ORDER TO SHOW CAUSE WHY SUMMONS AND COMPLAINT HAVE NOT BEEN SERVED IN COMPLIANCE WITH RULE 4 OF THE FEDERAL RULES OF CIVIL PROCEDURE ORDER VACATING INITIAL SCHEDULING CONFERENCE AND SETTING A STATUS CONFERENCE U N IT E D STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DISCUSSION Rule 4(m) of the Federal Rules of Civil Procedure provides in pertinent part: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. More than 120 days have elapsed since Plaintiff filed the summons and complaint in this action. In fact, as of this date, 195 days have elapsed. Thus, this Court ORDERS Plaintiff, no later than December 2, 2010, to show cause in writing why Plaintiff has failed to: (1) file documents to show proof of service of the summons and complaint on the aforementioned Defendants to comply with Rule 4(l) of the Federal Rules of Civil Procedure; and (2) accomplish service of the summons and complaint on the aforementioned Defendants within 120 days of filing the complaint to comply with Rule 4(m) of the Federal Rules of Civil Procedure. Plaintiff is admonished that this Court will recommend dismissal of this action if Plaintiff fails to comply with this Order and to show good cause for its failure to accomplish service of the summons and complaint. Finally, this matter is presently scheduled for an Initial Scheduling Conference to be held November 22, 2010, at 9:00 a.m. In light of the fact Defendants have not been served with the summons and complaint and/or otherwise appeared in this action, this Court VACATES the Initial Scheduling Conference and SETS the matter for a Status Conference on December 16, 2010, at 10:00 a.m. in Courtroom 10. IT IS SO ORDERED. i70h38 ed: Dat November 18, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 2

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