Winters, et al v. Jordan, et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
BRENT ALLAN WINTERS, et al.,
No. 2:09-cv-00522 JAM KJN PS
DELORES JORDAN, et al.,
On March 15, 2012, the undersigned conducted a status (pretrial scheduling)
conference in this case. It appears from the plaintiffs’ status report and the court’s docket that
defendant Cheryl Wade remains unserved after nearly three years of litigation.1 An un-executed
summons filed on January 27, 2010, reflects that Wade has not been served (Dkt. No. 104). The
docket does not reflect any additional efforts on plaintiffs’ part to effectuate service of process or
to assist the U.S. Marshal in effectuating service.2
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
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).
Plaintiffs are proceeding in forma pauperis.
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.
However, at the status conference, plaintiff Susan Winters represented that she might have an
address at which Wade may be served.
Taking Susan Winters’s representation at face value, the undersigned provides
plaintiffs with 30 days from March 15, 2012, in which to effectuate service on Wade. At the
conclusion of this 30-day period, plaintiffs shall file a declaration under penalty of perjury that
explains their efforts to serve Wade. Absent a showing of good cause supporting the grant of
additional leave to serve Wade, the undersigned will recommend that Wade be dismissed from
this action without prejudice pursuant to Rule 4(m).
Accordingly, IT IS HEREBY ORDERED that:
Plaintiffs shall have 30 days from March 15, 2012, in which 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.
IT IS SO ORDERED.
DATED: March 15, 2012
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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