Smith v. Does

Filing 53

ORDER Dismissing Complaint. Signed by Judge Hamilton on 12/13/2011. (pjhlc2, COURT STAFF) (Filed on 12/13/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 GWENDOLYN SMITH, Plaintiff, 8 9 v. ORDER DISMISSING COMPLAINT JOHN DOES 1-10, et al., 11 For the Northern District of California United States District Court 10 No. C 10-0996 PJH Defendants. _______________________________/ 12 13 Plaintiff is before the court once again, after having failed to successfully serve the 14 defendants in this action. As has previously been noted by the court, the original complaint 15 was filed on March 8, 2010, against “John Does 1-10 d/b/a” Plaintiff 16 requested leave to proceed in forma pauperis (“IFP”), and that request was granted on 17 June 8, 2010. The order stated that “the U.S. Marshal for the Northern District of California 18 [shall] serve, without prepayment of fees, a copy of the complaint, any amendments, 19 scheduling orders, attachments, plaintiff's affidavit and this order upon the defendant.” On 20 June 9, 2010, the clerk sent the first letter to plaintiff requesting addresses of defendants, 21 so that they could be served by the U.S. Marshal. Plaintiff did not respond to this letter. 22 Plaintiff did, however, file a request for leave to subpoena records, stating that she 23 needed to do so in order to learn the identity of the defendants. That request was granted 24 on June 17, 2010. Plaintiff filed a second, similar request, which was granted on 25 September 27, 2010. 26 Between May 2010 and February 2011, plaintiff filed five requests to continue the 27 date for the initial case management conference. In the first, second, and third requests, 28 filed May 28, 2010, August 5, 2010, and October 14, 2010, she stated that “DOE 1 Defendant” had not yet been served. In the fourth request, filed December 27, 2010, she 2 stated that “Defendants” had been identified [and] served,” and that “return of waiver of 3 service of summons is pending.” In the fifth request, filed February 2, 2011, she stated that 4 “Doe Defendant” had “not yet responded.” 5 6 7 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, 8 stating that she had “uncovered true individual and corporate identities of the primary Doe 9 Defendants.” The court granted the request, and on February 18, 2011, plaintiff filed a first amended complaint, adding defendants “Howard Elan, a.k.a. Elan and Reverend Oracle, 11 For the Northern District of California United States District Court 10 husband and wife; Breakthrough International, Inc., and Elan as President of Breakthrough 12 International.” 13 14 15 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 16 plaintiff provided for defendants Howard Elan, Reverend Oracle, and Breakthrough 17 International, Inc., but was unable to effectuate service. The summonses were returned 18 unexecuted as to Howard Elan and Reverend Oracle on March 30, 2011, and as to 19 Breakthrough on May 5, 2011. 20 On May 10, 2011, the court issued an order to show cause why plaintiff’s complaint 21 should not be dismissed for failure to prosecute, in view of plaintiff’s failure to comply with 22 Rule 4(m). On May 27, 2011, before the order to show cause could be held, plaintiff filed a 23 motion for service by publication on one defendant – Howard Elan. 24 On June 2, 2011, the court held its show cause hearing, discharged the order, and 25 allowed plaintiff yet another extension of time – until July 5, 2011 – in which to complete 26 service of process. By that date, the court ruled, plaintiff must either provide the clerk with 27 defendants’ current addresses (to be forwarded to the U.S. Marshal’s Office for service), or 28 2 1 plaintiff could effectuate service of process independently. Alternatively, plaintiff could file a 2 renewed motion for an order for service by publication pursuant to California Code of Civil 3 Procedure § 415.50 (to that end, the court denied plaintiff’s pending motion for service by 4 publication without prejudice). 5 Following the show cause hearing, on June 22, 2011, a summons was once again 6 issued as to defendants Howard Elan and Breakthrough International. On July 12, 2011, 7 however, the summons were returned unexecuted yet again. This time, the U.S. Marshal 8 stated that service had been attempted but that the current occupant stated that the 9 “subject has not lived at the address for the last 2 years.” The subject’s “new address” is listed as “possibly [New Zealand].” 11 For the Northern District of California United States District Court 10 Since the unexecuted return of the summons on July 12, plaintiff has filed no further 12 proofs of service, nor has plaintiff filed any renewed motion for service by publication. It is 13 now approaching nearly two years since the complaint was filed, and the defendants still 14 have not been served. The court has extended the time for service multiple times, but 15 plaintiff has failed to satisfy her obligation to provide the court with an accurate address at 16 which the defendants can be served by the U.S. Marshal. Nor has plaintiff satisfied her 17 obligation to alternatively file a renewed motion for service by publication. 18 Accordingly, and for the foregoing reasons, the court hereby DISMISSES plaintiff’s 19 complaint pursuant to Federal Rule of Civil Procedure 4(m), for failure to serve all 20 defendants. The dismissal is without prejudice. 21 22 IT IS SO ORDERED. 23 Dated: December 13, 2011 24 ______________________________ PHYLLIS J. HAMILTON United States District Judge 25 26 27 28 3

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