Yeshiwas v. United States Citizenship and Immigration Services

Filing 17

ORDER VACATING HEARING DATE. Signed by Judge Hamilton on 1/2/2013. (pjhlc1, COURT STAFF) (Filed on 1/2/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ADERAW YESHIWAS,
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Petitioner,

No. C 12-1719 PJH

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v.

ORDER VACATING HEARING DATE

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Respondent.
_______________________________/

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For the Northern District of California

United States District Court

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U.S. CITIZENSHIP & IMMIGRATION
SERVICES,

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On April 5, 2012, petitioner Aderaw Yeshiwas filed this petition for a writ of

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mandamus to correct an error in a naturalization certificate. Named as respondent is

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United States Citizenship & Immigration Services (“USCIS”). On July 5, 2012, petitioner

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filed a proof of service, purporting to show personal service of the summons on “USCIS -

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District Counsel,” by delivery to “Designated Service in-basket” located at an address in

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San Francisco, California, on April 16, 2012, by counsel for petitioner.

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On July 5, 2012, petitioner filed a motion for writ of mandamus, with no attached

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proof of service. On August 21, 2012, petitioner filed another proof of service, purporting to

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show service of the summons on “USCIS District Counsel,” on July 25, 2012. On October

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24, 2012, petitioner filed another “motion for writ of mandamus,” noticed for hearing on

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December 6, 2012. On December 4, 2012, after the case was reassigned to the

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undersigned district judge, petitioner renoticed the motion for hearing on January 9, 2012.

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On December 21, 2012, petitioner renoticed the motion for hearing on January 30, 2012.

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To date, the named respondent has not entered an appearance, which the court

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surmises is most likely due to the fact that service was improper and that petitioner failed to

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join the proper parties. Federal Rule of Civil Procedure 4(i) governs service on federal

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agencies and federal employees.

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To serve a United States agency or corporation, or a United States officer or
employee sued only in an official capacity, a party must serve the United
States and also send a copy of the summons and of the complaint by
registered or certified mail to the agency, corporation, officer, or employee.

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Fed. R. Civ. P. 4(i)(2). Further, to serve the United States, a party must
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(A)(i) deliver a copy of the summons and of the complaint to the United States
attorney for the district where the action is brought – or to an assistant United
States attorney or clerical employee whom the United States attorney
designates in a writing filed with the court clerk – or
(ii) send a copy of each by registered or certified mail to the civil-process clerk
at the United States attorney's office;

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For the Northern District of California

United States District Court

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(B) send a copy of each by registered or certified mail to the Attorney General
of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the
United States, send a copy of each by registered or certified mail to the
agency or officer.
Fed. R. Civ. P. 4(i)(1).
Here, petitioner has failed to properly serve the correct respondents. Under Rule

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4(i)(3)(A), the court is required to “allow a party reasonable time to cure its failure to . . .” to

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serve all persons required to be served under Rule 4(i)(2), if the petitioner has served “the

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United States Attorney or the Attorney General of the United States.” In this case,

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however, petitioner has not served the U.S. Attorney or the Attorney General.

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Nevertheless, rather than dismissing the petition, the court will allow plaintiff to

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amend it, naming the proper respondents. The amended petition shall be filed no later than

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January 16, 2013. No later than January 30, 2013, petitioner shall file a proof of service

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showing service in conformance with Rule 4(i).

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The January 30, 2013 hearing date is VACATED.

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IT IS SO ORDERED.

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Dated: January 2, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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