Baker v. Doe et al

Filing 199

DISMISSAL ORDER - Signed by JUDGE JILL A. OTAKE on 8/28/2019. In light of Plaintiff's failure to serve Defendants more than three years after commencement of this suit, the Court finds dismissal of this action is appro priate. Accordingly, Plaintiff's claims against Defendants Ogata and Gaspar are DISMISSED WITHOUT PREJUDICE. Evelyn Gaspar (Registered Nurse at Oahu Community Correctional Center, sued in her indi vidual capacity) and Lisa Ogata (Registered Nurse at Oahu Community Correctional Center, sued in her individual capacity) terminated. (emt, )COURT'S CERTIFICATE of Service - Vernon John Baker shall be served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on August 29, 2019. Registered Participants of CM/ECF received the document electronically to the email addresses listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

VERNON JOHN BAKER,

CIV. NO. 16-00140 JAO-RLP

Plaintiff,
DISMISSAL ORDER
vs.
EVELYN GASPAR, RN; LISA OGATA,
RN,
Defendants.

DISMISSAL ORDER
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. ECF 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
February 20, 2018, Plaintiffs filed a motion to compel discovery of the last known

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Some defendants were originally named as Doe Defendants and later identified in
Plaintiff’s Second Amended Complaint. ECF No. 1, 14.
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addresses of Defendants Gaspar and Ogata, ECF 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, ECF No. 116 at 3.
On February 25, 2019, the Court issued an order to show cause why claims
against Defendants Gaspar and Ogata should not be dismissed without prejudice for
failure to serve pursuant to FRCP 4(m). ECF No. 174. The Court warned Plaintiff
that failure to respond may result in dismissal of the claims against Defendants
Gaspar and Ogata. Id. Plaintiff responded to the order to show cause on March 12,
2019. ECF No. 179. The letter outlined Plaintiff’s attempts to effectuate service as
follows:
•

In his Motion Requesting Council (sic), filed on May 16,
2016, Plaintiff requested counsel for various reasons,
including his limited ability to investigate the case, finding
the names of all appropriate defendants, and the sorting out
of the personal involvement of multiple witnesses. See Dkt.
No. 8. The motion was denied on May 19, 2016.

•

Plaintiff attempted to follow the orders for service laid out
in Magistrate Judge Richard L. Puglisi’s Order Directing
Service, filed on May 19, 2016. See Dkt. No. 9. Indeed,
Plaintiff was able to get a Summons in a Civil Action issued
as to Defendants Gaspar and Ogata. See Dkt. No. 15 and 17.

•

Additionally, Plaintiff filed a Second Amended Complaint
on June 29, 2016, once he was able to find out who “Jane
Doe” and “Susan Doe” were.

•

On March 20, 2017, Plaintiff filed Questions regarding
Defendants’ Request for Answers to Interrogatories and
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Request for Summary Judgment for no reply from Evelyn
Gaspar and Lisa Ogata. See Dkt. No. 44.
•

As the Order, dated March 31, 2017 by Judge Puglisi
indicates, Plaintiff did seek diligently to find contact
information for Defendants Gaspar and Ogata, but the
answer was that they were not employed by the Department
of Public Safety and they did not have contact information
for them. See Dkt. No. 46; also Dkt. No. 22.

•

On July 30, 2018, the Clerk of Court issued Plaintiff a
subpoena to compel the Department of Public Safety for the
names and contact information for the contracting agencies
used for Defendants Gaspar and Ogata.

•

On August 28, 2018, Plaintiff filed a Motion for Extension
to Join Additional Parties and Request for Time for the
Department of Public Safety to Respond to Subpoenas
Issued July 30, 2018. See Dkt. No. 150 and Judge Puglisi’s
Order Regarding the motion, filed on September 4, 2018,
Dkt. No. 151.

ECF No. 179 at 2–3. For the reasons stated in Plaintiff’s response to the order to
show cause, the Court granted Plaintiff’s request for additional time to effectuate
service until June 1, 2019. ECF No. 186. Plaintiff failed to serve Defendants
Gaspar and Ogata by the deadline.
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.

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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).
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:
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
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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).
After receiving an extension of time to file service, Plaintiff still failed to
properly serve Defendants Gaspar and Ogata. Federal Rule of Civil Procedure
(“FRCP”) 41(b) authorizes the Court to sua sponte dismiss an action for failure “to
prosecute or to comply with [the federal] rules or a court order.” Fed. R. Civ. P.
41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir.
2005). Unless the Court in its order for dismissal otherwise specifies, a dismissal
under this rule operates as an adjudication upon the merits. Fed. R. Civ. P. 41(b).
Although the Court recognizes that Plaintiff is proceeding pro se, he is not
exempt from complying with all applicable rules. Local Rule 83.13 (“Pro se
litigants shall abide by all local, federal, and other applicable rules and/or
statutes.”). In light of Plaintiff’s failure to serve Defendants more than three years
after commencement of this suit, the Court finds dismissal of this action is
appropriate. Accordingly, Plaintiff’s claims against Defendants Ogata and Gaspar
are DISMISSED WITHOUT PREJUDICE.

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IT IS SO ORDERED.
Dated: Honolulu, Hawai‘i, August 28, 2019.

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

CIVIL NO. 16-00140; BAKER v. GASPAR; DISMISSAL ORDER

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