Terry v. Hawaii Air National Guard

Filing 13

ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION TO DISMISS FOR LACK OF SERVICE 9 . Signed by JUDGE LESLIE E. KOBAYASHI on 8/1/2013. ~ Hearing on the Motion, currently schedule for August 19, 2013 at 11:15 a.m., is VACATED. ~ (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on August 2, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
OSIRIS TERRY,

)
)
Plaintiff,
)
)
vs.
)
)
HAWAII AIR NATIONAL GUARD,
)
)
)
Defendant.
_____________________________ )

CIVIL NO. 13-00295 LEK-RLP

ORDER DENYING WITHOUT PREJUDICE DEFENDANT’S
MOTION TO DISMISS FOR LACK OF SERVICE
Before the Court is Defendant Hawaii Air National
Guard’s (“Defendant”) Motion to Dismiss for Lack of Service
(“Motion”), filed on July 2, 2013.

[Dkt. no. 9.]

Pro se

Plaintiff Osiris Terry (“Plaintiff”) did not respond to the
Motion.

The Court finds this matter suitable for disposition

without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i.

The hearing on the Motion, currently scheduled for

August 19, 2013 at 11:15 a.m., is therefore VACATED.

After

careful consideration of the Motion and the relevant legal
authority, Defendant’s Motion is HEREBY DENIED WITHOUT PREJUDICE
for the reasons set forth below.
BACKGROUND
On June 12, 2013, Plaintiff filed his Employment
Discrimination Complaint (“Complaint”) alleging race
discrimination.

Plaintiff attempted to serve Defendant on

June 26, 2013.

Lieutenant Colonel David A. Lopina (“Lopina”)1

signed the Proof of Service acknowledging receipt of documents in
this case, but the Complaint was not included within the
documents presented to him.
(“Lopina Decl.”) at ¶ 4.]
on June 26, 2013.

[Motion, Decl. of David A. Lopina

The signed Proof of Service was filed

[Dkt. no. 8.]

Lopina forwarded the documents that he received to the
State of Hawai`i Department of the Attorney General (“AG’s
Office”).
¶ 4.2]

[Motion, Decl. of Julian T. White (“White Decl.”) at

Plaintiff has not served the Complaint on either the AG’s

Office or the Office of the Governor of the State of Hawai`i.
Further, Plaintiff has not served either the United States
Attorney’s Office for the District of Hawai`i or the United
States Attorney General.

[Id. at ¶¶ 6-7, 9.]

In the instant

Motion, Defendant seeks dismissal of Plaintiff’s Complaint for
improper service.
DISCUSSION
Defendant is correct that the attempted service on
Defendant through Lopina was improper because, among other
reasons, Plaintiff did not provide a copy of the Complaint.

1

See

Lopina is an attorney licensed to practice in this
district court. He is the Staff Judge Advocate for the Hawaii
National Guard. [Motion, Decl. of David A. Lopina at ¶ 2.]
2

Deputy Attorney General Julian T. White represents
Defendant in this action. [White Decl. at ¶ 3.]
2

Fed. R. Civ. P. 4(c) (“A summons must be served with a copy of
the complaint.

The plaintiff is responsible for having the

summons and complaint served within the time allowed by Rule 4(m)
and must furnish the necessary copies to the person who makes
service.”).

This Court therefore STRIKES the Proof of Service

filed on June 26, 2013.

This Court, however, finds that

dismissal for lack of service is not warranted at this time.
Pursuant to Federal Rule of Civil Procedure 4(m),
Plaintiff has 120 days from the filing of the Complaint to
complete service.

Rule 4(m) states, in pertinent part:

If a defendant is not served within 120 days after
the complaint is filed, the court--on motion or on
its own after notice to the plaintiff--must
dismiss the action without prejudice against that
defendant or order that service be made within a
specified time. But if the plaintiff shows good
cause for the failure, the court must extend the
time for service for an appropriate period. . . .
Plaintiff filed the Complaint on June 12, 2013.
period expires on October 10, 2013.

The 120-day

Insofar as Plaintiff still

has approximately two months to complete service on Defendant,
and in light of the fact that Plaintiff is proceeding pro se,
this Court DENIES Defendant’s Motion WITHOUT PREJUDICE.
The Court DIRECTS Plaintiff to consult Federal Rule of
Civil Procedure 4(j)(2) for the requirements to serve a state
entity.

The Court also notes that Federal Rule of Civil

Procedure 4(i) sets forth the requirements to serve the United
States and its agencies.

At this time, however, the Court
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expresses no opinion on the question of whether the Hawaii Air
National Guard is an agency of the United States or is merely a
state entity.
If Plaintiff believes that he will be unable to
complete service by October 10, 2013, Plaintiff should file a
motion requesting an extension of time to complete service.

The

motion must state the reason why Plaintiff will not able to
complete service within the 120-day period, and Plaintiff must
specify how much additional time he requests.

Plaintiff should

file the motion prior to October 10, 2013.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion to
Dismiss for Lack of Service, filed July 2, 2013, is HEREBY DENIED
WITHOUT PREJUDICE.

This Court, however, STRIKES the Proof of

Service filed on June 26, 2013.

[Dkt. no. 8.]

IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 1, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

OSIRIS TERRY V. HAWAII AIR NATIONAL GUARD; CIVIL NO. 13-00295
LEK-RLP; ORDER DENYING WITHOUT PREJUDICE DEFENDANT’S MOTION TO
DISMISS FOR LACK OF SERVICE

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