Merkley v. Continental Labor Resources, Inc. et al

Filing 13

ORDER to Plaintiff to SHOW CAUSE Why Defendant Continental Labor Resources, Inc., Should Not Be Dismissed From This Case, signed by Magistrate Judge Jennifer L. Thurston on 5/11/2015. Show Cause Response due within 14 days. (Hall, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 BERNIE MERKLEY, ) ) Plaintiff, ) ) v. ) CONTINENTAL LABOR RESOURECES, INC., ) et al., ) ) Defendants. ) CASE NO: 1:14-cv-01867 --- JLT ORDER TO PLAINTIFF TO SHOW CAUSE WHY DEFENDANT CONTINENTAL LABOR RESOURCES, INC., SHOULD NOT BE DISMISSED FROM THIS CASE Plaintiff filed this action on November 24, 2014 and in the complaint, raises causes of action 18 related to claims surrounding the termination of his employment. (Doc. 1 at 4) The Court issued a 19 summons to defendants on the same date the matter was filed. (Doc. 2) Noting that Plaintiff had failed to 20 file proof of service as to any Defendant, on February 26, 2015, the Court continued the mandatory 21 scheduling conference and reminded Plaintiff of his obligation to effect timely service. (Doc. 4) 22 Soon thereafter, Plaintiff filed proof of service as to Advanced Industrial Services, Inc. (Doc. 5) 23 and this defendant answered. (Doc. 6) Plaintiff has not filed a proof of service as to defendant, 24 Continental Labor Resources, Inc. However, in its answer, Advanced Industrial Services made a 25 counterclaim against Continental Labor Resources, Inc. to which Continental has answered. (Doc. 9) 26 However, given there has been no service, Continental has not responded to Plaintiff’s complaint. 27 As Plaintiff was warned in the Court’s February 2015 order, he was obligated to serve his 28 1 complaint within 120 days of its filing. (Doc. 4 at 2) The Court advised, “Plaintiff is reminded of its 2 obligation of timely service under Rule 4 and that the Court may order the dismissal of this matter sua 3 sponte for failure to comply with Fed. R. Civ. P. 4.” Id. The Court further admonished, “Plaintiff is 4 advised that his failure to comply with this order and with Fed. R. Civ. P. 4, will result in a 5 recommendation that the matter be dismissed.” Id., emphasis in the original. Despite this and despite 6 the passage of five-and-a-half months since the filing of the complaint, Plaintiff has failed to file proof 7 of service on Defendant Continental. 8 Thus, Plaintiff SHALL show cause in writing within 14 days why Defendant Continental Labor 9 Resources, Inc., should not be dismissed due to Plaintiff’s failure to comply with Fed. R. Civ. P. 4 (m) 10 [“If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its 11 own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or 12 order that service be made within a specified time. But if the plaintiff shows good cause for the failure, 13 the court must extend the time for service for an appropriate period.”] 14 15 16 IT IS SO ORDERED. Dated: May 11, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28

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