Xavier v. Roche et al
ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/8/2012 ORDERING plaintiff to SHOW GOOD CAUSE within 30 days why his claims against defendants French and Holland should not be dismissed for failure to execute service. (Yin, K)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
GARY R. XAVIER,
No. 2:09-cv-0783 LKK CKD P
M. FRENCH, et al.,
Plaintiff is a prisoner who is proceeding with counsel and in forma pauperis.
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983.
On July 9, 2012, the court ordered the United States Marshal to serve the
complaint filed September 1, 2011 on defendants Holland and French. (Dkt. No. 36.) Neither
defendant has been served to date. (See Dkt. Nos. 39, 40.) Rule 4(m) of the Federal Rules of
Civil Procedure requires a plaintiff to serve a defendant within 120 days after it files the
complaint. A court must dismiss a case without prejudice if plaintiff has not complied with Rule
4(m) unless the plaintiff shows good cause for failure to serve a defendant. Id. If good cause
appears, the court must extend the time for service for an appropriate period. Id. Whether good
cause exists is determined on a case-by-case basis. In re Sheehan, 253 F.3d 507, 512 (9th Cir.
2001). A plaintiff may show good cause where he attempted to serve a defendant but not yet
completed it, was confused about the requirements for service of process, or was prevented from
serving defendants because of events outside his control. See Wei v. Hawaii, 763 F.2d 370, 372
(9th Cir. 1985).
Accordingly, IT IS HEREBY ORDERED that plaintiff is to show good cause
within thirty days why his claims against defendants French and Holland should not be dismissed
for failure to execute service. Plaintiff’s response should include new information that might
allow the Marshals Service to locate these defendants or how such information might reasonably
Dated: November 8, 2012
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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?