Baker v. Doe et al

Filing 174

ORDER TO SHOW CAUSE - Signed by JUDGE JILL A. OTAKE on 2/22/2019. Accordingly, Plaintiff is hereby ORDERED TO SHOW CAUSE in writing by March 8, 2019 why claims against Defendants Gaspar and Ogata should no t be dismissed without prejudice for failure to serve pursuant to FRCP 4(m). Plaintiff is warned that failure to respond may result in dismissal of the claims against Defendants Gaspar and Ogata without prejudice. Show Cause Response due by 3/8/2019. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

VERNON JOHN BAKER,

CIV. NO. 16-00140 JAO-RLP

Plaintiff,
ORDER TO SHOW CAUSE
vs.
EVELYN GASPAR, RN; LOUIS
NURSE SEMEATU, RN; LISA
OGATA, RN; COURTNEY MORI, RN;
DR. KARL AYER; DR. FRANCIS
HAMADA,
Defendants.

ORDER TO SHOW CAUSE
On March 24, 2016, Plaintiff Vernon Baker filed suit against Evelyn Gaspar,
Lisa Ogata, Louis Semeatu, Courtney Mori, Dr. Karl Ayer, and Dr. Francis
Hamada. 1
On August 8, 2017, Magistrate Judge Puglisi issued an order denying
Plaintiff’s request for entry of default against Defendants Hamada, Gaspar, Ogata,
and Ayer. Doc. No. 70 at 4. Judge Puglisi ordered Plaintiffs to provide the
addresses of Defendants Gaspar and Ogata so that they could be served. Id. On

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Some defendants were originally named as Doe Defendants and later identified in
Plaintiff’s Second Amended Complaint. Doc. No. 1, 14.
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February 20, 2018, Plaintiffs filed a motion to compel discovery of the last known
addresses of Defendants Gaspar and Ogata, Doc. No. 115, which was denied on
February 23, 2018, because the Department of Public Safety had already informed
the Court that it did not possess such information, Doc. No. 116 at 3.
Pursuant to the Federal Rules of Civil Procedure (“FRCP”) 4(c)(1), Plaintiff,
not the Court, is responsible for serving a summons with the complaint:
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.
Fed. R. Civ. P. 4(c)(1); see also Fed. R. Civ. P 4(b) (“On or after filing the
complaint, the plaintiff may present a summons to the clerk for signature and
seal.”). FRCP 4(a) establishes the information that a summons must contain.
Additionally, a summons must be issued for each defendant to be served. Fed. R.
Civ. P. 4(b). There is no evidence in the record that Plaintiff has served a proper
summons on Defendants Gaspar and Ogata. Indeed, at the January 18, 2019
hearing on Defendants’ Second Motion for Summary Judgment, counsel for
Plaintiff confirmed that neither had been served.
FRCP 4 requires a plaintiff to serve the complaint and summons within 90
days after the complaint is filed unless the plaintiff demonstrates good cause to
extend the time for service:

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If a defendant is not served within 90 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.
Fed. R. Civ. P. 4(m).
Thus, FRCP 4(m) “requires a district court to grant an extension of time
when the plaintiff shows good cause for the delay,” but it “permits the district court
to grant an extension even in the absence of good cause.” Efaw v. Williams, 473
F.3d 1038, 1040 (9th Cir. 2007) (emphasis in original). “In making extension
decisions under [FRCP] 4(m) a district court may consider factors ‘like a statute of
limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual
service.’” Id. at 1041 (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381,
383 (7th Cir. 1998)). Where a plaintiff does not show good cause for failing to
timely serve a defendant, the district court has broad discretion under FRCP 4(m) to
dismiss without prejudice the claims against that defendant. In re Sheehan, 253
F.3d 507, 512–13 (9th Cir. 2001).
Although years have passed since Plaintiff initiated this lawsuit, he has failed
to properly serve Defendants Gaspar and Ogata. Accordingly, Plaintiff is hereby
ORDERED TO SHOW CAUSE in writing by March 8, 2019 why claims against
Defendants Gaspar and Ogata should not be dismissed without prejudice for failure
to serve pursuant to FRCP 4(m). Plaintiff is warned that failure to respond may
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result in dismissal of the claims against Defendants Gaspar and Ogata without
prejudice.
IT IS SO ORDERED.
Dated: Honolulu, Hawai‘i, February 22, 2019.

/s/ Jill A. Otake________
Jill A. Otake
United States District Judge

CIVIL NO. 16-00324; BAKER V. GASPAR ET. AL.; ORDER TO SHOW CAUSE

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