Miyasaki v. Treacy et al
Filing
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THIRD ORDER TO SHOW CAUSE: Order to Show Cause Hearing set for 11/13/2014 10:00 AM. Show Cause Response due by 11/3/2014. Signed by Judge Maria-Elena James on 10/22/2014. (cdnS, COURT STAFF) (Filed on 10/22/2014)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MARGARET EVE-LYNNE MIYASAKI,
Case No. 12-cv-04427-MEJ
Plaintiff,
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v.
THIRD ORDER TO SHOW CAUSE
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KYNA TREACY, et al.,
Defendants.
United States District Court
Northern District of California
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On June 30, 2014, Plaintiff Margaret Eve-Lynne Miyasaki filed her Seventh Status Report,
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indicating that she was still attempting to effect service of process on Defendant, a citizen of
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Australia. Dkt. No. 26. This case has now been pending for over two years, and it appears that
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Plaintiff has not been diligent in her attempts to serve Defendant. For example, in the most recent
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status report, Plaintiff states that she “intends to file a motion to permit alternative service on
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defendant shortly.” However, nearly four months have passed since she made that statement, yet
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no further docket activity has taken place.
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Federal Rule of Civil Procedure 4(m) imposes a 120-day time limit on domestic service
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but does not set a time limit for completing service on a defendant who resides outside of the
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United States. See Lucas v. Natoli, 936 F.2d 432, 432 (9th Cir. 1991). The Ninth Circuit has
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never specifically imposed any time limit on serving a foreign defendant. However, other circuits
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have held that “the amount of time allowed for foreign service is not unlimited.” Nylok Corp. v.
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Fastener World Inc., 396 F.3d 805, 807 (7th Cir. 2005); see also Feliz v. MacNeill, 493 Fed.
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App’x 128, 131 (1st Cir. 2012) (“[C]ourts have leave to dismiss for failure to serve abroad when a
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plaintiff is dilatory.”).
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Accordingly, given that this case has now been pending for over two years, and Plaintiff
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has not followed through on her statements regarding service, the Court hereby ORDERS Plaintiff
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Margaret Eve-Lynne Miyasaki to show cause why this case should not be dismissed for failure to
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prosecute. Plaintiff shall file a declaration by November 3, 2014. If a responsive declaration is
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filed, the Court shall either issue an order based on the declaration or conduct a hearing on
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November 13, 2014 at 10:00 a.m. in Courtroom B, 15th Floor, 450 Golden Gate Avenue, San
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Francisco, California. Notice is hereby provided to Plaintiff that the Court may dismiss the case
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without a hearing if no responsive declaration is filed. Thus, it is imperative that Plaintiff file a
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written response by the deadline above.
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IT IS SO ORDERED.
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United States District Court
Northern District of California
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Dated: October 22, 2014
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MARIA-ELENA JAMES
United States Magistrate Judge
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