Flores v. Mnuchin

Filing 6

ORDER TO SHOW CAUSE DIRECTING Plaintiff to show cause why she should not be sanctioned up to, and including, dismissal for failing to appear at the Initial Scheduling Conference and why this case should not be dismissed for failure to effectuate service in accordance with the 90-day time limit in Rule 4(m). Plaintiff shall file a written show cause response within 14 days of this Order. Order signed by Magistrate Judge Erica P. Grosjean on 11/15/2017. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. 1:17-cv-00834-AWI-EPG

MARIE FLORES,

ORDER FOR PLAINTIFF TO SHOW
CAUSE WHY SHE SHOULD NOT BE
SANCTIONED FOR FAILURE TO
APPEAR

v.
STEVEN MNUCHIN,

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ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR
FAILURE TO EFFECTUATE SERVICE OF
PROCESS

Defendant.

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14-DAY DEADLINE

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Marie Flores (“Plaintiff”) is proceeding pro se in this civil rights action for race

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discrimination and retaliation.
A. Failure to Appear at Mandatory Conference

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On August 14, 2017, the Court set an Initial Scheduling Conference for November 14,

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2017 at 9:30 a.m. (ECF No. 4.)

Scheduling Conference is mandatory for all parties. ... If a party is not represented by counsel,
they must appear personally at the Scheduling Conference.” (Id. at 2.)

The Order also

specifically provided as follows:
Should counsel or a party appearing pro se fail to appear at the Mandatory
Scheduling Conference, or fail to comply with the directions as set forth above,
an ex parte hearing may be held and contempt sanctions, including monetary
sanctions, dismissal, default, or other appropriate judgment, may be imposed
and/or ordered.

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The August 14 Order stated that “[a]ttendance at the

(Id. at 7.)

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The mandatory conference was held on November 14, 2017, but Plaintiff did not

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appear.

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Accordingly, Plaintiff IS ORDERED to show cause why she should not be sanctioned

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up to and including dismissal for failing to appear at the Initial Scheduling Conference.

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Plaintiff shall file a written show cause response within 14 days of this Order.

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B. Failure to Effectuate Service of Process

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Rule 4(m) of the Federal Rules of Civil Procedure provides:

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(m) Time Limit for Service. If a defendant is not served within 90 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), 4(h)(2), or 4(j)(1).
Fed. R. Civ. P. 4(m).

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The Complaint initiating this case was filed on June 22, 2017. Summons was issued on

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August 14, 2017. However, there is no indication that the defendant has been served in this

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case. Nor has Plaintiff requested more time to effectuate service or attempted to show good

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cause for the failure.

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Accordingly, Plaintiff IS ORDERED to show cause why this case should not be

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dismissed for failure to effectuate service in accordance with the 90-day time limit in Rule

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4(m). Plaintiff shall file a written show cause response within 14 days of this Order.

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C. Federal Rule of Civil Procedure 4(i)

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Counsel for the prospective defendant appeared at the November 14, 2017 conference.

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Counsel indicated that he believed that Plaintiff had attempted service, but the service attempt

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did not comply with Rule 4(i).

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For Plaintiff’s reference, Federal Rule of Civil Procedure 4(i) provides:
(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.
(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint to the United
States attorney for the district where the action is brought—or to an
assistant United States attorney or clerical employee whom the United
States attorney designates in a writing filed with the court clerk—or

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(ii) send a copy of each by registered or certified mail to the civilprocess clerk at the United States attorney's office;
(B) send a copy of each by registered or certified mail to the Attorney
General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of
the United States, send a copy of each by registered or certified mail to
the agency or officer.
(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To
serve a United States agency or corporation, or a United States officer or
employee sued only in an official capacity, a party must serve the United States
and also send a copy of the summons and of the complaint by registered or
certified mail to the agency, corporation, officer, or employee.
(3) Officer or Employee Sued Individually. To serve a United States officer or
employee sued in an individual capacity for an act or omission occurring in
connection with duties performed on the United States’ behalf (whether or not
the officer or employee is also sued in an official capacity), a party must serve
the United States and also serve the officer or employee under Rule 4(e), (f), or
(g).
(4) Extending Time. The court must allow a party a reasonable time to cure its
failure to:
(A) serve a person required to be served under Rule 4(i)(2), if the party
has served either the United States attorney or the Attorney General of
the United States; or
(B) serve the United States under Rule 4(i)(3), if the party has served the
United States officer or employee.

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

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IT IS SO ORDERED.
Dated:

November 15, 2017

/s/

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UNITED STATES MAGISTRATE JUDGE

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