Miyasaki v. Treacy et al

Filing 27

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)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

MARGARET EVE-LYNNE MIYASAKI,

Case No. 12-cv-04427-MEJ

Plaintiff,
8
v.

THIRD ORDER TO SHOW CAUSE

9
10

KYNA TREACY, et al.,
Defendants.

United States District Court
Northern District of California

11
12
13

On June 30, 2014, Plaintiff Margaret Eve-Lynne Miyasaki filed her Seventh Status Report,

14

indicating that she was still attempting to effect service of process on Defendant, a citizen of

15

Australia. Dkt. No. 26. This case has now been pending for over two years, and it appears that

16

Plaintiff has not been diligent in her attempts to serve Defendant. For example, in the most recent

17

status report, Plaintiff states that she “intends to file a motion to permit alternative service on

18

defendant shortly.” However, nearly four months have passed since she made that statement, yet

19

no further docket activity has taken place.

20

Federal Rule of Civil Procedure 4(m) imposes a 120-day time limit on domestic service

21

but does not set a time limit for completing service on a defendant who resides outside of the

22

United States. See Lucas v. Natoli, 936 F.2d 432, 432 (9th Cir. 1991). The Ninth Circuit has

23

never specifically imposed any time limit on serving a foreign defendant. However, other circuits

24

have held that “the amount of time allowed for foreign service is not unlimited.” Nylok Corp. v.

25

Fastener World Inc., 396 F.3d 805, 807 (7th Cir. 2005); see also Feliz v. MacNeill, 493 Fed.

26

App’x 128, 131 (1st Cir. 2012) (“[C]ourts have leave to dismiss for failure to serve abroad when a

27

plaintiff is dilatory.”).

28

Accordingly, given that this case has now been pending for over two years, and Plaintiff

1

has not followed through on her statements regarding service, the Court hereby ORDERS Plaintiff

2

Margaret Eve-Lynne Miyasaki to show cause why this case should not be dismissed for failure to

3

prosecute. Plaintiff shall file a declaration by November 3, 2014. If a responsive declaration is

4

filed, the Court shall either issue an order based on the declaration or conduct a hearing on

5

November 13, 2014 at 10:00 a.m. in Courtroom B, 15th Floor, 450 Golden Gate Avenue, San

6

Francisco, California. Notice is hereby provided to Plaintiff that the Court may dismiss the case

7

without a hearing if no responsive declaration is filed. Thus, it is imperative that Plaintiff file a

8

written response by the deadline above.

9

IT IS SO ORDERED.

10

United States District Court
Northern District of California

11
12
13

Dated: October 22, 2014
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2