Dunmore v. Dunmore
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 5/10/2012 ORDERING that Plaintiff's 27 ex parte application for order allowing service of summons by publication and by other means, filed 4/16/2012, is DENIED without prejudice. (Zignago, K.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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STEVEN G. DUNMORE, et al.,
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Plaintiffs,
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CIV. NO. S-11-2867 MCE GGH PS
vs.
JEREMY A. DUNMORE, et al.,
ORDER
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Defendants.
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On January 13, 2012, this court ordered plaintiff to file and serve his second
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amended complaint within twenty-eight days. (Dkt. no. 19.) On April 4, 2012, the district court
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granted plaintiff ten days after that order in which to file a second amended complaint. (Dkt. no.
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25.) The court’s order requiring timely serve and joint status report requires that service of
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process be completed within 120 days of October 31, 2011. (Dkt. No. 4.) Plaintiff has filed his
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second amended complaint; however, he has also filed an “ex parte application for order
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allowing service of summons by publication and by other means.” He seeks to serve
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approximately fourteen defendants, six individuals and eight entities, by publication, and has
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attached declarations supporting his failed attempts at personal service of these defendants.
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A plaintiff may serve an individual by “following state law for serving a summons
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in an action brought in courts of general jurisdiction in the state where the district court is located
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or where service is made.” Fed. R. Civ. P. 4(e)(1). Service of corporations, partnerships or
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associations are governed by Rule 4(h). In California, “[a] summons may be served by
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publication if upon affidavit it appears to the satisfaction of the court in which the action is
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pending that the party to be served cannot with reasonable diligence be served in another manner
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specified in this article and that either: (1) A cause of action exists against the party upon whom
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service is to be made or he or she is a necessary or proper party to the action....” Cal. Civ. Proc.
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Code § 415.50(a).
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A determination that a claim exists against the unserved defendants, that they are
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necessary or proper parties, or that there is federal subject matter jurisdiction in this case would
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be premature at this stage of the proceedings. Therefore, plaintiff’s application will be denied
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without prejudice to its renewal after a dispositive motion has been filed and decided.
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Accordingly, IT IS ORDERED that: Plaintiff’s ex parte application for order
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allowing service of summons by publication and by other means, filed April 16, 2012, (dkt. no.
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27), is denied without prejudice.
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DATED: May 10, 2012
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH/076
Dunmore2867.pub.wpd
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