Smith v. Does

Filing 47

ORDER TO SHOW CAUSE. Signed by Judge Hamilton on 5/10/2011. (pjhlc1, COURT STAFF) (Filed on 5/10/2011) (Additional attachment(s) added on 5/10/2011: # 1 Certificate of Service) (nah, COURT STAFF).

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 9 GWENDOLYN SMITH, Plaintiff, No. C 10-0996 PJH 11 For the Northern District of California United States District Court 10 v. ORDER TO SHOW CAUSE 12 13 14 15 DOES 1-10; HOWARD ELAN; REVEREND ORACLE; BREAKTHROUGH INTERNATIONAL, INC., Defendants. _______________________________/ 16 17 TO PLAINTIFF GWENDOLYN SMITH: 18 YOU ARE HEREBY ORDERED TO APPEAR ON JUNE 2, 2011, AND SHOW 19 CAUSE why the above-entitled action should not be dismissed pursuant to Federal Rule of 20 Civil Procedure 41(b) for failure to prosecute. 21 The original complaint was filed on March 8, 2010, against “John Does 1-10 d/b/a 22” Plaintiff requested leave to proceed in forma pauperis (“IFP”), and 23 that request was granted on June 8, 2010. The order stated that “the U.S. Marshal for the 24 Northern District of California [shall] serve, without prepayment of fees, a copy of the 25 complaint, any amendments, scheduling orders, attachments, plaintiff's affidavit and this 26 order upon the defendant.” On June 9, 2010, the clerk sent the first letter to plaintiff 27 requesting addresses of defendants, so that they could be served by the U.S. Marshal. 28 Plaintiff did not respond to this letter. 1 Plaintiff did, however, file a request for leave to subpoena records, stating that she 2 needed to do so in order to learn the identity of the defendants. That request was granted 3 on June 17, 2010. Plaintiff filed a second, similar request, which was granted on 4 September 27, 2010. 5 Between May 2010 and February 2011, plaintiff filed five requests to continue the 6 date for the initial case management conference. In the first, second, and third requests, 7 filed May 28, 2010, August 5, 2010, and October 14, 2010, she stated that “DOE 8 Defendant” had not yet been served. In the fourth request, filed December 27, 2010, she 9 stated that “Defendants” had been identified [and] served,” and that “return of waiver of service of summons is pending.” In the fifth request, filed February 2, 2011, she stated that 11 For the Northern District of California United States District Court 10 “Doe Defendant” had “not yet responded.” 12 13 14 During the same period, plaintiff also filed three requests for extensions of time for service. All three were granted – the last one on November 19, 2010. On February 11, 2011, plaintiff filed a request for leave to amend the complaint, 15 stating that she had “uncovered true individual and corporate identities of the primary Doe 16 Defendants.” The court granted the request, and on February 18, 2011, plaintiff filed a first 17 amended complaint, adding defendants “Howard Elan, a.k.a. Elan and Reverend Oracle, 18 husband and wife; Breakthrough International, Inc., and Elan as President of Breakthrough 19 International.” 20 21 22 On February 22, 2011, the clerk sent plaintiff another letter requesting the addresses of defendants for service. Plaintiff responded to the letter on March 11, 2011. The U.S. Marshal attempted service of the summons and complaint at the address 23 plaintiff provided for defendants Howard Elan, Reverend Oracle, and Breakthrough 24 International, Inc., but was unable to effectuate service. The summonses were returned 25 unexecuted as to Howard Elan and Reverend Oracle on March 30, 2011, and as to 26 Breakthrough on May 5, 2011. 27 28 Under Federal Rule of Civil Procedure 4(m), the court must dismiss an action if the defendant is not served within 120 days after the complaint is filed, unless “the plaintiff 2 1 shows good cause for the failure,” in which case the court “must extend the time for service 2 for an appropriate period.” Here, the complaint was filed more than 14 months ago, and 3 the defendants still have not been served. The court has extended the time for service, but 4 plaintiff has failed to satisfy her obligation to provide the court with an accurate address at 5 which the defendants can be served by the U.S. Marshal. 6 The hearing on the order to show cause, and the case management conference, will 7 be held on June 2, 2011, at 2:00 p.m., in Courtroom 3, 3rd Floor, Federal Building, 1301 8 Clay Street, Oakland, California. 9 may result in the dismissal of this action. 11 For the Northern District of California United States District Court 10 The court will not grant any further requests for a continuance. Failure to appear 12 IT IS SO ORDERED. 13 Dated: May 10, 2011 ______________________________ PHYLLIS J. HAMILTON United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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