Real v. Soltanian-Zedeh et al

Filing 43

ORDER signed by Magistrate Judge Gregory G. Hollows on 8/3/2012, giving notice to plaintiff, that within 14 days, if plaintiff does not SHOW GOOD CAUSE for the failure for service to be effected upon defendant Heffner, he will be dismissed without prejudice pursuant to F.R.Civ.P. 4(m).(Yin, K)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9

DOUGLAS REAL,

10
11
12
13
14
15

Plaintiff,

No. CIV S-11-1821 GGH P

vs.
JALAL SOLTANIAN-ZADEH, et al.,

ORDER

Defendants.
/
Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. By order

16

filed on January 17, 2012, the court ordered the United States Marshal to serve the amended

17

complaint on defendants. Process directed to two of the defendants, Galloway and Heffner, was

18

returned unserved, and, by order filed on February 7, 2012, plaintiff was ordered to provide

19

additional information so these defendants could be served. Following plaintiff’s March 12,

20

2012, submission in response to the February 7th order, the U.S. Marshal was once again

21

directed to serve these two defendants in an order filed on March 23, 2012. An executed waiver

22

of service with respect to defendant Galloway was filed in this court on April 10, 2012; however,

23

as to defendant Heffner, process was again returned unserved as of April 6, 2012. The court than

24

directed defendants’ counsel to assist with finding a location for defendant Heffner by order filed

25

on April 19, 2012. Following defense counsel’s May 2, 2012, response, the undersigned yet

26

again directed service of the amended complaint by order filed on May 15, 2012. Again,
1

1

however, service of process upon defendant Heffner was unsuccessful and the latest summons

2

was returned unexecuted on June 25, 2012.

3

Under Rule 4(m), the court must dismiss without prejudice an action as to any

4

defendant who has not been served within 120 days after a complaint has been filed “on motion

5

or on its own after notice to the plaintiff” or specify a time for service to be effected; if “the

6

plaintiff shows good cause for the failure, the court must extend the service for an appropriate

7

period.” In this instance, the court has made multiple efforts to serve this defendant and has

8

provided plaintiff with ample opportunity to provide an accurate location for him and has

9

invoked the assistance of defendants’ counsel to that end, all to no avail.

10

By this order, the court serves notice upon plaintiff that if, within fourteen days,

11

plaintiff does not show good cause for the failure for service to be effected upon defendant

12

Heffner, he will be dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m).

13

DATED: August 3, 2012

14
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

15
16
GGH:009

17

real1821.nsv

18
19
20
21
22
23
24
25
26
2