Winters, et al v. Jordan, et al
Filing
330
ORDER signed by Magistrate Judge Kendall J. Newman on 3/15/2012 GRANTING Plaintiffs 30 day from 3/15/2012 to effectuate service of process on Defendant Cheryl Wade. By the close of the above-described 30-day period, plaintiffs shall file a declaration under penalty of perjury that explains their efforts to serve Wade. (Michel, G)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BRENT ALLAN WINTERS, et al.,
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Plaintiffs,
No. 2:09-cv-00522 JAM KJN PS
v.
DELORES JORDAN, et al.,
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Defendant.
ORDER
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On March 15, 2012, the undersigned conducted a status (pretrial scheduling)
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conference in this case. It appears from the plaintiffs’ status report and the court’s docket that
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defendant Cheryl Wade remains unserved after nearly three years of litigation.1 An un-executed
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summons filed on January 27, 2010, reflects that Wade has not been served (Dkt. No. 104). The
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docket does not reflect any additional efforts on plaintiffs’ part to effectuate service of process or
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to assist the U.S. Marshal in effectuating service.2
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As stated at the status conference, the undersigned is inclined to recommend the
dismissal of Wade without prejudice pursuant to Federal Rule of Civil Procedure 4(m). In
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This case proceeds before the undersigned pursuant to Eastern District of California Local
Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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Plaintiffs are proceeding in forma pauperis.
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relevant part, Rule 4(m) provides:
(m) Time Limit for Service. If a defendant is not served within 120 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.
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However, at the status conference, plaintiff Susan Winters represented that she might have an
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address at which Wade may be served.
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Taking Susan Winters’s representation at face value, the undersigned provides
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plaintiffs with 30 days from March 15, 2012, in which to effectuate service on Wade. At the
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conclusion of this 30-day period, plaintiffs shall file a declaration under penalty of perjury that
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explains their efforts to serve Wade. Absent a showing of good cause supporting the grant of
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additional leave to serve Wade, the undersigned will recommend that Wade be dismissed from
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this action without prejudice pursuant to Rule 4(m).
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Accordingly, IT IS HEREBY ORDERED that:
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1.
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Plaintiffs shall have 30 days from March 15, 2012, in which to effectuate
service of process on defendant Cheryl Wade.
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By the close of the above-described 30-day period, plaintiffs shall file a
declaration under penalty of perjury that explains their efforts to serve Wade.
IT IS SO ORDERED.
DATED: March 15, 2012
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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