Burnett v. Dugan et al

Filing 125

ORDER Denying as Premature and Without Prejudice (Doc. 109 ) Plaintiff's Ex Parte Motion For Request of Waiver of Service. Signed by Judge M. James Lorenz on 3/8/2011. (All non-registered users served via U.S. Mail Service) (srm)

1 2 3 4 5 6 7 8 9 10 11 ESTER BURNETT, 12 13 v. 14 DR. DUGAN, et al., 15 16 17 Defendants. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv1324 L(WVG) ORDER DENYING AS PREMATURE AND WITHOUT PREJUDICE PLAINTIFF'S EX PARTE MOTION FOR REQUEST OF WAIVER OF SERVICE [doc. #109] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff has filed an ex parte motion1 requesting an extension of time to serve newly

18 named defendants in his amended complaint or supplemental complaint and waiver of service of 19 process. On November 10, 2009, plaintiff filed a second amended complaint ("SAC") [doc. 20 #83] that defendants moved to dismiss.2 While the motions to dismiss the SAC were pending, 21 plaintiff filed a motion for leave to file a supplemental complaint. [doc. #89] The motions were 22 referred to the assigned magistrate judge for a report and recommendation ("Report") which was 23 filed on July 23, 2010. [doc. #102] On August 30, 2010, plaintiff filed objections to the Report, 24 25 Although plaintiff's filing is entitled "motion of notice of request of a waiver of service pursuant [to] Rule 4(d)," the Court construes the filing as an motion. 26 Defendants filed an "Unenumerated 12(b) Motion for Failure to Exhaust Administrative Remedies [doc. #87], and a Motion to Dismiss the SAC under Rule 12(b)(6) 28 [doc. #88]. 27
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1 the present motion for a waiver of service and a motion for leave to file an opposition to the 2 motions to dismiss. 3 The Court adopted in part the Report and granted the motion to dismiss the unexhausted

4 claims and the motion to dismiss the SAC on September 30, 2010.3 [doc. #115] But the Court 5 again referred plaintiff's motion for leave to file a supplemental complaint to the magistrate 6 judge based on a change in the law, i.e., Rhodes v. Robinson, 2010 WL 3489777 (9th Cir. 2010). 7 The magistrate judge filed a supplemental report and recommendation on February 23,

8 2011. Objections to the supplemental report are due on March 9, 2011. 9 In returning to plaintiff's pending motion for an extension of time to serve newly named

10 defendants in his amended complaint or supplemental complaint and waiver of service of 11 process, the Court finds that the motion is premature and will be denied on that basis. After 12 reviewing the supplemental Report, the issue of service of process may become relevant and 13 timely. In such a situation, plaintiff may renew his motion. 14 Based on the foregoing, IT IS ORDERED denying as premature and without prejudice

15 plaintiff's ex parte motion for an extension of time to serve newly named defendants in his 16 amended complaint or supplemental complaint and waiver of service of process. 17 IT IS SO ORDERED.

18 DATED: March 8, 2011 19 20 21 COPY TO: 22 HON. WILLIAM V. GALLO UNITED STATES MAGISTRATE JUDGE 23 24 ALL PARTIES/COUNSEL 25 The Court granted defendants' motion to dismiss unexhausted claim without prejudice, and granted defendants' motion to dismiss the SAC with prejudice as to Warden 27 Almager, Dr. Barreras, Dr. Dugan and Dr. Hawthorne, and without prejudice as to defendants Dr. Fraze, Dr. Khatri, G.J. Guirbino and Jane Doe, R.N. and denied the motion for leave to file a 28 late opposition to defendants' motions to dismiss. 26
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M. James Lorenz United States District Court Judge

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