Jackson v. Southwest Countrywide 2007 Corporate Pass-Through Certificate Series 2007, et al

Filing 10

ORDER signed by Magistrate Judge Deborah Barnes on 9/15/17 ORDERING the 8/9/17 findings and recommendation 8 are VACATED; Plaintiff is GRANTED forty-five days from the date of this order to serve a defendant in compliance with Rule 4 of the Federal Rules of Civil Procedure; and Plaintiff is cautioned that the failure to timely comply with this order may result in a recommendation that this case be dismissed pursuant to Rule 4. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEPHEN JACKSON,

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Plaintiff,

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No. 2:16-cv-3032 GEB DB PS

v.

ORDER

SOUTHWEST COUNTRYWIDE 2007
CORPORATE PASS-THROUGH
CERTIFICATE SERIES, et al.,

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Defendants.

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Plaintiff Stephen Jackson, proceeding pro se, commenced this action on December 28,

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2016, by filing a complaint and paying the required filing fee. (ECF No. 1.) This matter was

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referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).

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On August 9, 2017, the undersigned issued findings and recommendations recommending

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that this action be dismissed due to plaintiff’s lack of prosecution. (ECF No. 8.) On August 24,

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2017, plaintiff filed a “RESPONSE” to those findings and recommendations. (ECF No. 9.)

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Therein, plaintiff asserts that plaintiff was “not disregarding nor ignoring the Court’s orders,” but

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that plaintiff has been unable to serve summons on the defendant. (Id. at 2.) Accordingly, the

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August 9, 2017, findings and recommendations recommending dismissal due to plaintiff’s failure

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to prosecute will be vacated.

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However, plaintiff has been repeatedly advised that Rule 4(m) of the Federal Rules of

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Civil Procedure provides that a defendant must be dismissed if service of the summons and

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complaint is not accomplished on the defendant within 90 days after the complaint was filed.

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(ECF Nos. 4, 5, 7, 8.) Over 8 months have passed since plaintiff filed this action on December

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28, 2016, and no defendant has been served with summons and a copy of the complaint.

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Plaintiff’s response “prays for an Order allowing publications of Summons and Complaint

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. . . .” (ECF No. 9 at 3.) If plaintiff wishes to serve defendant via publication plaintiff must bring

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a motion seeking such pursuant to Local Rule 230. Plaintiff is advised that Rule 4(e) of the

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Federal Rules of Civil Procedure provides that an individual “may be served in a judicial district

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of the United States by . . . following state law for serving a summons in an action brought in

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courts of general jurisdiction in the state where the district court is located or where service is

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made.” Fed. R. Civ. P. 4(e)(1). California Code of Civil Procedure § 415.50 states,

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(a) A summons may be served by publication if upon affidavit it
appears to the satisfaction of the court in which the action is
pending that the party to be served cannot with reasonable diligence
be served in another manner specified in this article and that either:

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(1) A cause of action exists against the party upon whom
service is to be made or he or she is a necessary or proper party to
the action.
(2) The party to be served has or claims an interest in real or
personal property in this state that is subject to the jurisdiction of
the court or the relief demanded in the action consists wholly or in
part in excluding the party from any interest in the property.
Cal. Civ. P. Code § 415.50(a).
“When substituted or constructive service is attempted, strict compliance with the letter

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and spirit of the statutes is required.” Olvera v. Olvera, 232 Cal.App.3d 32, 41 (1991). “Before

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allowing a plaintiff to resort to service by publication, the courts necessarily require him to show

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exhaustive attempts to locate the defendant, for it is generally recognized that service by

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publication rarely results in actual notice.” Watts v. Crawford, 10 Cal.4th 743, 749 n.5 (Cal.

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1995) (quotation marks omitted). “The term ‘reasonable diligence’ takes its meaning from the

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former law: it denotes a thorough, systematic investigation and inquiry conducted in good faith by

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the party or his agent or attorney[.]” Kott v. Superior Court, 45 Cal.App.4th 1126, 1137 (1996).
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Accordingly, IT IS HEREBY ORDERED that:

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1. The August 9, 2017 findings and recommendation (ECF No. 8) are vacated;

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2. Plaintiff is granted forty-five days from the date of this order to serve a defendant in

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compliance with Rule 4 of the Federal Rules of Civil Procedure; and
3. Plaintiff is cautioned that the failure to timely comply with this order may result in a

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recommendation that this case be dismissed pursuant to Rule 4.

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Dated: September 15, 2017

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DLB:6
DB\orders\orders.pro se\jackson3032.rule4.ord

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