Cook v. Cate et al

Filing 37

ORDER : NOTICE REGARDING INABILITY TO SERVE DEFENDANT VASQUEZ. Signed by Judge Yvonne Gonzalez Rogers on 3/18/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 3/18/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 8 9 NOTICE REGARDING INABILITY TO SERVE DEFENDANT D. VACQUEZ Plaintiff, 6 7 No. C 11-06581 YGR (PR) SCOTT TROY COOK, vs. MATTHEW CATE, et al., Defendants. / United States District Court For the Northern District of California 10 Service has been ineffective on Defendant D. Vacquez. The Court has been informed that 11 the litigation coordinator at Pelican Bay State Prison ("PBSP") was "unable to identify a D. Vacquez 12 as ever working at [PBSP]." (Feb. 19, 2013 Letter from L. Padon at 1.) 13 While Plaintiff may rely on service by the United States Marshal, "a plaintiff may not remain 14 silent and do nothing to effectuate such service. At a minimum, a plaintiff should request service 15 upon the appropriate defendant and attempt to remedy any apparent defects of which [he] has 16 knowledge." Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). If the marshal is unable to 17 effectuate service and the plaintiff is so informed, the plaintiff must seek to remedy the situation or 18 face dismissal of the claims regarding that defendant under Federal Rule of Civil Procedure 4(m). 19 See Fed. R. Civ. P. 4(m) (providing that if service of the summons and complaint is not made upon a 20 defendant in 120 days after the filing of the complaint, the action must be dismissed without 21 prejudice as to that defendant absent a showing of "good cause"); see also Walker v. Sumner, 14 22 F.3d 1415, 1421-22 (9th Cir. 1994) (prisoner failed to show cause why prison official should not be 23 dismissed under Rule 4(m) because prisoner did not prove that he provided marshal with sufficient 24 information to serve official). 25 No later than twenty-eight (28) days from the date of this Order, Plaintiff must provide the 26 Court with a current address for Defendant Vacquez. Plaintiff should review the federal discovery 27 rules, Rules 26-37 of the Federal Rules of Civil Procedure, for guidance about how to determine the 28 current address of this Defendant. 1 If Plaintiff fails to provide the Court with the current address of Defendant Vacquez 2 within the twenty-eight-day deadline, all claims against this Defendant will be dismissed 3 without prejudice under Rule 4(m). 4 IT IS SO ORDERED. 5 DATED: March 18, 2013 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\YGR\CR.11\Cook6581.locateDefVacquez.wpd 2

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