Knickerbocker v. United States Department of Interior, Death Valley National Park, National Park Service

Filing 7

ORDER DISCHARGING 5 Order to Show Cause; ORDER to SHOW CAUSE Why the Matter Should Not Be Dismissed, signed by Magistrate Judge Jennifer L. Thurston on 3/21/2017. Show Cause Response due by 3/31/2017. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISSAM ELIE KNICKERBOCKER,
Plaintiff,

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v.

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UNITED STATES OF AMERICA, et al.,

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Defendants.

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Case No.: 1:16-cv-01811 DAD JLT
ORDER DISCHARGING ORDER TO SHOW
CAUSE (DOC. 5)
ORDER TO SHOW CAUSE WHY THE MATTER
SHOULD NOT BE DISMISSED

On December 1, 2016, Plaintiff filed the instant action. (Doc. 1) On December 5, 2016, the

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Court issued the summonses (Doc. 3) and its order setting the mandatory scheduling conference to

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occur on March 6, 2017. (Doc. 4) In its order setting the mandatory scheduling conference, the Court

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advised counsel:

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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.

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(Doc. 3 at 1-2, emphasis added) Because the plaintiff had not filed proofs of service of the summons

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and complaint and no defendant has appeared in the action, the Court ordered the plaintiff to show

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cause why the action should not be dismissed. (Doc. 5) In response, the plaintiff reported that he
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“served” the defendant by serving the California Attorney General. (Doc. 6) He reports that, despite

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the Attorney General notifying him of his error in later January 2017, he didn’t receive this

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correspondence until late February.1 Id. Moreover, despite clearly knowing he has failed to serve the

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complaint and despite the passage of weeks since this discovery, still, he has not served the summons

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and complaint and filed proof of service. This is unacceptable. Thus, the Court ORDERS:

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The order to show cause, issued on February 15, 2017 is DISCHARGED;

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No later than March 31, 2017, the plaintiff SHALL show serve the summons and

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complaint and file proof of service or SHALL show cause in writing why this matter should not be

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dismissed for his failure to prosecute this action, to comply with the Court’s orders and to comply with

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Fed. R. Civ. P. 4(m).

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Failure to comply may result in the imposition of sanctions, including the dismissal of the
action.

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IT IS SO ORDERED.

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Dated:

March 21, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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Failing to “receive” one’s mail is not the same thing as it not having been delivered. While this litigation is pending, the
plaintiff SHALL obtain his mail in a timely fashion or bear the consequences of failing to do so.

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