Kaur v. United States of America et al

Filing 5

ORDER to SHOW CAUSE Why the Matter Should Not Be Dismissed for Failure to Timely Serve the Summons and Complaint and for Failure to Prosecute, signed by Magistrate Judge Jennifer L. Thurston on 11/5/2014. Show Cause Response due within 14 days. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

KARAMJIT KAUR,
Plaintiff,

12
13

v.

14

UNTIED STATES OF AMERICA, et al.,

15

Defendants.

)
)
)
)
)
)
)
)
)

Case No.: 1:14-cv-00839 --- JLT
ORDER TO SHOW CAUSE WHY THE MATTER
SHOULD NOT BE DISMISSED FOR FAILURE
TO TIMELY SERVE THE SUMMONS AND
COMPLAINT AND FOR FAILURE TO
PROSECUTE

16
17

On May 30, 2014, Plaintiff filed the instant action. (Doc. 1) On June 3, 2014, the Court issued

18

the summons (Doc. 2) and its order setting the mandatory scheduling conference to occur on

19

September 16, 2014. (Doc. 3) In its order setting the mandatory scheduling conference, the Court

20

advised counsel:

21
22
23
24

The Court is unable to conduct a scheduling conference until defendants have been
served with the summons and complaint. Accordingly, plaintiff(s) shall diligently
pursue service of summons and complaint and dismiss those defendants against whom
plaintiff(s) will not pursue claims. Plaintiff(s) shall promptly file proofs of service of
the summons and complaint so the Court has a record of service. Counsel are referred
to F.R.Civ.P., Rule 4 regarding the requirement of timely service of the complaint.
Failure to timely serve summons and complaint may result in the imposition of
sanctions, including the dismissal of unserved defendants.

25
26

(Doc. 3 at 1-2, emphasis added) Despite this warning, Plaintiff failed to file a proof of service of the

27

summons and complaint as of August 28, 2014.

28

As a result, on that date, the Court continued the mandatory scheduling conference to
1

1

November 17, 2014 and reminded Plaintiff of his obligation to serve the summons and complaint

2

within 120 days of the filing of the complaint as required by Fed. R. Civ. P. 4. In addition, the Court

3

advised Plaintiff that failing to comply with the timely service rule, would result in a order of the

4

Court dismissing the unserved defendants. Nevertheless, despite the passage of more than five months

5

since the filing of this action, Plaintiff has failed to file proof that he has served the summons and

6

complaint.

7

Notably, Fed. R. Civ. P. 4(m) reads,

8

If a defendant is not served within 120 days after the complaint is filed, the court--on
motion or on its own after notice to the plaintiff--must dismiss the action without
prejudice against that defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must extend the time for
service for an appropriate period. This subdivision (m) does not apply to service in a
foreign country under Rule 4(f) or 4(j)(1).

9
10
11
12
13

Therefore, the Court ORDERS,
1.

Within 14 days, Plaintiff SHALL show good cause in writing why this matter should

14

not be dismissed for his failure to timely serve the summons and complaint and for his failure to

15

prosecute this action;

16

2.

The mandatory scheduling conference set on November 17, 2014 is VACATED.

17
18
19
20

IT IS SO ORDERED.
Dated:

November 5, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
2