Guillot v. Ferrell et al

Filing 8

ORDER to SHOW CAUSE Why Case Should Not Be Dismissed Under Rule 4(m) and for Failure to Prosecute, signed by District Judge Anthony W. Ishii on 2/8/17: Show Cause Response due no later than 3:00 p.m. on 2/17/2017. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRANK GUILLOT,

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CASE NO. 1:16-CV-1307 AWI MJS
Plaintiff

v.
TERRENCE FERRELL, THE UNITED
STATES POSTAL SERVICE, and DOES
1-20 inclusive,

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ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED UNDER
RULE 4(m) AND FOR FAILURE TO
PROSECUTE

Defendants

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On September 2, 2016, Plaintiff filed a Complaint against the United States Postal Service

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(“USPS”) and Terrence Ferrell, a USPS mail carrier. See Doc. No. 1. The Complaint alleges a

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single cause of action for intentional infliction of emotional distress. See id.

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On September 6, 2016, the Clerk’s office issued a summons, and the Magistrate Judge

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issued new case documents and set the initial scheduling conference for December 8, 2016. See

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Doc. Nos. 4, 5.

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On December 5, 2016, the Magistrate Judge vacated the December 8 scheduling

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conference by minute order. See Doc. No 6. No scheduling conference reports or filings of any

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kind were made prior to December 5. The minute order in part reset the scheduling conference to

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February 10, 2017, informed Plaintiff that a scheduling conference report was due 10 days prior to

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the scheduling conference, and reminded Plaintiff of his service obligations under Federal Rule of

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Civil Procedure 4(m). See id.

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On February 3, 2017, the Magistrate Judge vacated the February 10, 2017 scheduling

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conference by minute order. See Doc. No. 7. No documents of any kind were filed after the

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Decmeber 5, 2016 minute order. The February 3 minute order informed Plaintiff that a scheduling

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conference report was due 10 days prior to the scheduling conference, and reminded Plaintiff of

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his service obligations under Rule 4(m). See id.

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Rule 4(m) provides that service of process must be effected within 90 days of filing the

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complaint. See Fed. R. Civ. P. 4(m). This deadline also applies to suits against the United States,

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its agencies, and its employees.1 See Mollison v. United States, 568 F.3d 1073, 1076 (9th Cir.

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Nev. 2009). When service is not accomplished within 90 days, a court’s actions are generally

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guided by the presence or absence of good cause. See In re Sheehan, 253 F.3d 507, 512 (9th Cir.

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2001). If there is good cause, the Court is under a mandatory duty and must extend the time for

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service. See Crowley v. Bannister, 734 F.3d 967, 975 (9th Cir. Nev. 2013); Efaw v. Williams, 473

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F.3d 1038, 1041 (9th Cir. 2007). If there is not good cause, the Court has the discretion to either

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dismiss the action against the non-served defendant without prejudice or set a specified time in

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which the plaintiff is to accomplish service. See Crowley, 734 F.3d at 975; Efaw, 473 F.3d at

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1041. In deciding whether to set a specified time for service in the absence of good cause, courts

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have broad discretion and may examines such considerations as a statute of limitations bar,

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prejudice to the defendant, actual notice of a lawsuit, and eventual service. Efaw, 473 F.3d at

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1041. Dismissals under Rule 4(m) may be accomplished through either a noticed motion or sua

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sponte by the court after notice to the plaintiff. See Fed. R. Civ. P. 4(m); Crowley, 734 F.3d at

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974-75.

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In this case, significantly more time than 90 days has now passed since the Complaint was

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filed on September 2, 2016. In the five months that have since passed, Plaintiff has filed nothing,

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despite an express reminder on December 5 from the Magistrate Judge about the Rule 4(m)

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deadline and the necessity of filing a scheduling conference statement. Under these

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A plaintiff who sues the United States or an officer, agency, or employee of the United States, will be provided a
“reasonable time” to cure defective service if the requirements of Federal Rule of Civil Procedure 4(i)(4) are met.
Mares v. United States, 627 Fed. Appx. 21, 22 (2d Cir. 2015).

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circumstances, the Court has serious concerns about the prosecution of this case. Without serving

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the Complaint, and indeed without any apparent activity by Plaintiff, this case cannot proceed.

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Therefore, it is appropriate for the Plaintiff to show cause why the Defendants should not be

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dismissed under Rule 4(m) and why this case should not be dismissed for failure to prosecute.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:
1.

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Defendants should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m), and

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No later than 3:00 p.m. on February 17, 2017, Plaintiff shall show cause in writing why the

why this case should not be dismissed for failure to prosecute;
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Plaintiff is warned that the failure to file a timely response to this order will result in the
termination of this case without further notice.

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IT IS SO ORDERED.
Dated: February 8, 2017
SENIOR DISTRICT JUDGE

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