Ortega v. City of Santa Clara et al

Filing 92

SECOND NOTICE REGARDING INABILITY TO SERVE DEFENDANT KAHN. Signed by Judge Suandra Brown Armstrong on 8/26/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 8/26/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SECOND NOTICE REGARDING
INABILITY TO SERVE DEFENDANT
KAHN

Plaintiff,

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No. C 09-05527 SBA (PR)

CARLOS A. ORTEGA,

v.
DR. MARK RITCHIE, et al.,
Defendants.

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/

United States District Court
For the Northern District of California

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Service has been ineffective on Defendant Salma Kahn, M.D., one of the defendants in this
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action.
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In an Order dated April 3, 2013, the Court noted that it had been informed that Defendant
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Kahn "is no longer a [Santa Clara] County employee" and the Santa Clara County Counsel's Office
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is "unaware of her present mailing address." (Aug. 20, 2012 Letter from Deputy County Counsel
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Mark. F. Bernal at 1.) The Court directed Plaintiff to provide the Court with a current address for
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Defendant Kahn.
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On April 22, 2013, Plaintiff provided the Court with the following address for Defendant
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Kahn: Santa Clara Valley Medical Center, 751 South Bascom Avenue, San Jose, CA 95128.
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On June 21, 2013, the Clerk of the Court attempted to re-serve the following on Defendant
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Kahn at the aforementioned address: a Notice of Lawsuit and Request for Waiver of Service of
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Summons, two copies of the Waiver of Service of Summons, a copy of the amended complaint and
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all attachments thereto and a copy of the Order of Service.
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However, again, service has been ineffective on Defendant Kahn. The Court has been
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informed that Defendant Kahn has resigned from "Santa Clara Valley Medical Center effective April
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14, 2010." (July 3, 2013 Letter from Cyndy Cook, Santa Clara Valley Medical Center at 1.)
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While Plaintiff may rely on service by the United States Marshal, "a plaintiff may not remain
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silent and do nothing to effectuate such service. At a minimum, a plaintiff should request service
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upon the appropriate defendant and attempt to remedy any apparent defects of which [he] has

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knowledge." Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). If the marshal is unable to

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effectuate service and the plaintiff is so informed, the plaintiff must seek to remedy the situation or

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face dismissal of the claims regarding that defendant under Federal Rule of Civil Procedure 4(m).

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See Fed. R. Civ. P. 4(m) (providing that if service of the summons and complaint is not made upon a

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defendant in 120 days after the filing of the complaint, the action must be dismissed without

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prejudice as to that defendant absent a showing of "good cause"); see also Walker v. Sumner, 14

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F.3d 1415, 1421-22 (9th Cir. 1994) (prisoner failed to show cause why prison official should not be

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dismissed under Rule 4(m) because prisoner did not prove that he provided marshal with sufficient

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information to serve official).

United States District Court
For the Northern District of California

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No later than twenty-eight (28) days from the date of this Order, Plaintiff must provide the

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Court with a current address for Defendant Kahn. Plaintiff should review the federal discovery

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rules, Rules 26-37 of the Federal Rules of Civil Procedure, for guidance about how to determine the

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current address of this Defendant.

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If Plaintiff fails to provide the Court with the current address of Defendant Kahn

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within the twenty-eight-day deadline, all claims against this Defendant will be dismissed

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without prejudice under Rule 4(m).

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IT IS SO ORDERED.

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DATED:

8/26/2013

SAUNDRA BROWN ARMSTRONG
UNITED STATES DISTRICT JUDGE

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G:\PRO-SE\SBA\CR.09\Ortega5527.2ndLOCATE-Kahn.wpd

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