Kamath v. Barmann, Jr. et al

Filing 21

ORDER DISMISSING Doe Defendant and Directing Clerk of Court to Close Case signed by District Judge Jennifer L. Thurston on 6/5/2024. CASE CLOSED. (Lawrence, A)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RESHMA KAMATH, Plaintiff, 12 13 14 15 v. Case No. 1:23-cv-00461 JLT CDB ORDER DISMISSING DOE DEFENDANT ORDER DIRECTING CLERK OF COURT TO CLOSE CASE BERNARD C BARMANN, et al., Defendant. 16 17 Plaintiff, attorney Reshma Kamath, brought this suit against the Kern County Superior 18 Court; Kern County Superior Court Judge Bernard C. Barmann, Jr.; the Presiding Judge of that 19 Court, Eric Bradshaw; and an unnamed Deputy Sheriff. (See generally Doc. 1.) On May 13, 2024, 20 the Court dismissed all claims against Judge Barmann, Presiding Judge Bradshaw, and the 21 Superior Court without leave to amend. (Doc. 19.) In that same order, the Court ordered Plaintiff 22 to show cause within 21 days why the remaining defendant should not be dismissed: 23 24 25 26 27 28 The record reflects that the unnamed Deputy Sheriff defendant has not entered an appearance in this case. (See Docket; see also Doc. 13 at 18 (plaintiff conceding as much).) There is no evidence on the docket that the unnamed Deputy has been served. Federal Rule of Civil Procedure 4(m) provides that “[i]f 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.” See also Flores v. Los Angeles Cnty. Sheriff’s 1 1 Dep’t, No. 2:21-CV-00117-VAP-EX, 2022 WL 18277272, at *8 (C.D. Cal. Nov. 2, 2022) (indicating a court may dismiss a doe defendant who is not timely identified and served). Alternatively, if the unnamed Deputy has been served and has not appeared, then it is unclear why Plaintiff has not requested entry of default against the Deputy. Thus, the Court will require Plaintiff to show cause in writing why the claims against the Unnamed Deputy Sheriff should not be dismissed. 2 3 4 5 *** 6 Within 21 days of the date of this order, Plaintiff is ordered to show cause why the unnamed Deputy Sheriff should not be dismissed from this case without prejudice because of either her failure to serve him or her failure to prosecute this matter. If Plaintiff fails to timely respond to this order to show cause, the Deputy Sheriff will be dismissed and this case closed without further notice. 7 8 9 10 (Doc. 19 at 12–13.) 11 The Complaint was filed on March 26, 2023, more than 14 months ago. The record does 12 not reflect that the unnamed Deputy Sheriff has been served or that there is good cause or other 13 reason to extend the 90-day deadline to do so. See Fed R. Civ. P. 4(m). On May 13, 2024, the 14 Plaintiff filed a document, apparently in response to the Court’s order to show cause, filled with 15 vitriol, implied threats of violence and inappropriate language but without addressing 16 substantively the Court’s concerns. (Doc. 20.) Instead, Plaintiff indicates that counsel for the 17 now-dismissed State Court Defendants failed to identify the unnamed Deputy Sheriff. (Id. at 3.) 18 Plaintiff does not explain why Defense counsel was obligated to provide this information or why 19 Plaintiff failed to move to compel any such action when he did not do so. Dismissal pursuant to 20 Rule 4(m) is therefore appropriate. Bonderer v. Unknown, No. 2:20-cv-2540 AC P, 2022 WL 21 1104747, *2 (E.D. Cal. April 13, 2022) (action dismissed because plaintiff failed to identify any 22 defendant for service within the time prescribed by Rule 4(m) and did not show good cause for 23 the failure); see also Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976) (affirming 24 dismissal of complaint for failure to prosecute when defendants were not served for almost one 25 year after filing). 26 /// 27 /// 28 /// 2 1 2 Accordingly, the remaining claims in the Complaint are DISMISSED, and the Clerk of Court is directed to CLOSE THIS CASE. 3 4 5 IT IS SO ORDERED. Dated: June 5, 2024 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?