Christ v. Blackwell et al

Filing 106

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/18/13 ORDERING that the Order to Show Cause dated May 14, 2013 101 is DISCHARGED; Within 14 days of the date of this order, defendant Roszko shall file a motion to amend the answer to incl ude defendant Roszko and/or to dismiss defendant Roszko under Federal Rule of Civil Procedure 4(m); Within 14 days of being served with defendants motion to amend and/or dismiss, plaintiff shall file an opposition to the motion or a statement of no opposition; and within seven days of service of plaintiffs opposition, defendants may file a reply brief.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JON CHRIST,

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Plaintiff,

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No. 2:10-cv-760-EFB P

v.

ORDER

R. BLACKWELL, et al.,

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Defendants.

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Jon Christ, plaintiff, is a state prisoner proceeding without counsel in an action brought

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under 42 U.S.C. § 1983. In reviewing the case in preparation for trial, the court discovered that

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two named defendants have not responded to the complaint. Accordingly, the court requested the

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parties to clarify the status of those named defendants. ECF No. 101. The parties have done so.

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ECF Nos. 102, 104, 105.

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I.

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Defendant Weiglein
Plaintiff originally filed this action in state court, and defendants elected to remove the

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case here. ECF No. 1-1. Defendant Weiglein did not answer or otherwise respond to the

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complaint. It was therefore unclear whether defendant Weiglein had ever been served. His name

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does not appear on the caption of the complaint, but it does appear in the body of the complaint.

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See id. at 3, 8. The court ordered plaintiff to show cause why defendant Weiglein should not be

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dismissed for failure to serve.
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Plaintiff responds that he is pursuing a separate action against defendant Weiglein, Case

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No. 2:11-cv-00525 TLN EFB. ECF No. 102. Accordingly, defendant Weiglein shall be

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dismissed from this action.

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II.

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Defendant Roszko
The notice of removal was signed by defense counsel on behalf of defendants Blackwell,

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Broyles, Lopez, Voight, Zuniga, and Roszko. See ECF No. 1 at 2. On August 31, 2010, the court

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ordered all defendants to file a response to the complaint within 30 days. ECF No. 15. On

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September 29, 2010, the same counsel filed an answer on behalf of defendants Blackwell,

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Broyles, Lopez, Voight, and Zuniga, but defendant Roszko was no longer listed. ECF No. 17.

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Defendants did not provide the court with any explanation for defendant Roszko’s sudden

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absence. He reappeared, however, as a potential witness in defendants’ pretrial statement. ECF

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No. 63 at 9.

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On October 5, 2010, plaintiff requested entry of default against all defendants. Plaintiff

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argued that the answer was due on September 28, 2010 and, because plaintiff had not yet received

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the answer on the date he drafted his motion (September 29, 2010), entry of default was

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appropriate as to all defendants. ECF No. 18. Plaintiff did not argue specifically that defendant

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Roszko had not responded to the complaint. The court, having received the timely answer of

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defendants Blackwell, Broyles, Lopez, Voight, and Zuniga on September 29, 2010, did not

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respond to plaintiff’s request.

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The court ordered defendants to show cause why the court should not reconsider

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plaintiff’s request for entry of default as to defendant Roszko. Defense counsel have responded

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that defendant Roszko was never served with the state court complaint prior to removal and that

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the inclusion of defendant Roszko on the notice of removal was inadvertent. ECF No. 104.

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According to defense counsel, they were referred the case from the state Attorney General’s

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office with only a few days to respond to the complaint. Id. In their haste, they did not verify

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whether defendant Roszko had actually been served. Id. Several days after removal, defendant

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Roszko informed defense counsel that he had not been served. Id. Accordingly, defense counsel

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did not file the answer on his behalf. Id. Then, the following year, defendant Roszko signed a
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formal request for representation from defense counsel in this case. ECF No. 104-3. The request

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states: “I will retain all defenses or objections to the lawsuit or to the jurisdiction or venue of the

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court except for objections based on a defect in the summons or in the service of the summons.

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Id. Defense counsel asks for permission to amend their answer to include defendant Roszko or,

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alternatively, to move for his dismissal because plaintiff failed to serve him. ECF No. 104.

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It is apparent from the attachments to plaintiff’s objections to defendants’ response to the

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order to show cause that plaintiff did not complete service of the complaint on defendant Roszko

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prior to the removal of the case to federal court. ECF No. 105 at 10. Once the case was removed

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to federal court, plaintiff had 120 days to accomplish that service by requesting that the court

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order the U.S. Marshal to effect service on defendant Roszko. 28 U.S.C. § 1448 (providing that,

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where service on a defendant has not been completed or perfected prior to removal, the plaintiff

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may complete that service of new process issued in the same manner as in cases filed originally in

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the district court); Fed. R. Civ. P. 4(c)(3) (providing that, at the plaintiff’s request, the court may

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order service by the U.S. Marshal) & 4(m) (providing that the court must dismiss a defendant not

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served within 120 days of the filing of the complaint unless plaintiff shows good cause for the

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failure to serve). Plaintiff did not do so.

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The court must provide plaintiff with additional time to effect service on defendant

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Roszko if plaintiff shows good cause for failing to do so within the 120 days following removal

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or if the court, in its discretion, otherwise determines that the time for service on defendant

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Roszko should be extended. Fed. R. Civ. P. 4(m); United States v. 2,164 Watches, 366 F.3d 767,

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771-72 (9th Cir. 2004); Parkinson v. Freedom Fid. Mgmt., No. 10-CV-0345-TOR, 2012 U.S.

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Dist. LEXIS 73985, at *14-16 (E.D. Wash. May 29, 2012).

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Accordingly, defendant Roszko shall file within 14 days of this order a motion to amend

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the answer to include Roszko and/or to dismiss Roszko under Rule 4(m). Plaintiff shall file an

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opposition to the motion or a statement of no opposition within 14 days of being served with the

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defendant’s motion. Defendants shall file any reply within seven days of service of plaintiff’s

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opposition.

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/////
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III.

Order

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For the reasons stated above, it is hereby ORDERED that:

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1. The Order to Show Cause dated May 14, 2013 (ECF No. 101) is DISCHARGED;

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2. Within 14 days of the date of this order, defendant Roszko shall file a motion to amend

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the answer to include defendant Roszko and/or to dismiss defendant Roszko under Federal Rule

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of Civil Procedure 4(m);

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3. Within 14 days of being served with defendants’ motion to amend and/or dismiss,
plaintiff shall file an opposition to the motion or a statement of no opposition; and

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4. Within seven days of service of plaintiff’s opposition, defendants may file a reply

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brief.

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Dated: July 18, 2013.

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