Lane v. United States of America

Filing 20

ORDER Regarding Plaintiff's Response To Order To Show Cause. "If Plaintiff fails to file proof of service as to either the Department or Thom by December 26, 2018, the Complaint may be dismissed as to that defendant. See Yourish v. Cal. Amplifier, 191 F.3d 983, 988 (9th Cir. 1999) (holding that the plaintiffs failure to comply with a minute order setting forth the deadline to file the amended complaint gave the district court the discretion to dismiss the case under Fed. R. Civ. P. 41(b)).2 If Plaintiff cannot file proof of service by December 26, 2018, he must file a motion seeking an extension of the deadline, and his motion must set forth good cause why hecannot file proof of service by that date.The Clerk's Office is DIRECTED to serve a copy of this Order on Kenji Price, United States Attorney for the District of Hawai`i."Signed by JUDGE LESLIE E. KOBAYASHI on 11/26/2018. (cib, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JONAH LANE,

)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA, ET )
AL.,
)
)
Defendants.
)
_____________________________ )

CIVIL 18-00060 LEK-RLP

ORDER REGARDING PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE
On February 14, 2018, Plaintiff Jonah Lane
(“Plaintiff”) filed his Complaint against Defendants United
States of America (“United States”), United States Department of
Agriculture (“Department”), and Charles Thom (“Thom”).
no. 1.]

[Dkt.

On September 5, 2018, this Court issued an Order to Show

Cause Why Case Should Not Be Dismissed for Failure to Prosecute
(“OSC”).

[Dkt. no. 14.]

The OSC ordered Plaintiff to file a

response by October 3, 2018.

[Id. at 2.]

On October 4, 2018, Plaintiff filed a Declaration of
Service by Hand Delivery, certifying that the Complaint, summons,
and the order setting the scheduling conference were delivered to
the United States Attorney’s Office for the District of Hawai`i
on October 3, 2018 (“10/4/18 Declaration”).

[Dkt. no. 16.]

October 9, 2018, Plaintiff filed his response to the OSC
(“Response”).

[Dkt. no. 18 (sealed).]

On October 15, 2018,

Plaintiff filed a Declaration of Service via Certified Mail,

On

certifying that the Complaint, summons, and the order setting the
scheduling conference were served on Attorney General Jeffrey
Sessions on October 10, 2018 (“10/15/18 Declaration”).

[Dkt.

no. 19.]
The Court does not condone Plaintiff’s failure to
either file his Response prior to the deadline set forth in the
OSC or request an extension of the deadline to respond to the
OSC.

However, this Court finds that the Response establishes

good cause for Plaintiff’s failure to serve the Complaint within
ninety days after the Complaint was filed.

See Fed. R. Civ.

P. 4(m) (“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.”).
Further, in light of the 10/4/18 Declaration and the
10/15/18 Declaration, this Court concludes, for purposes of the
OSC, that Plaintiff has complied with the requirements to
effectuate service on the United States.1

1

See Rule 4(i)(1).

The

This conclusion is for the purposes of the OSC only and
does not preclude the United States from challenging the
sufficiency of service, if appropriate under the circumstances of
this case.
2

United States is HEREBY ORDERED to respond to the Complaint
within the time period required by the applicable legal
authorities.
Plaintiff, however, has not complied with the
requirements to effectuate service on either the Department, see
Rule 4(i)(2), or Thom, see Rule 4(i)(2)-(3).

The Court therefore

ORDERS Plaintiff to file proof of service as to the Department
and Thom by December 26, 2018.

See Rule 4(i)(4) (“The court must

allow a party a reasonable time to cure its failure to: (A) serve
a person required to be served under Rule 4(i)(2), if the party
has served either the United States attorney or the Attorney
General of the United States[.]”).
If Plaintiff fails to file proof of service as to
either the Department or Thom by December 26, 2018, the Complaint
may be dismissed as to that defendant.

See Yourish v. Cal.

Amplifier, 191 F.3d 983, 988 (9th Cir. 1999) (holding that the
plaintiff’s failure to comply with a minute order setting forth
the deadline to file the amended complaint gave the district
court the discretion to dismiss the case under Fed. R. Civ. P.
41(b)).2

If Plaintiff cannot file proof of service by

December 26, 2018, he must file a motion seeking an extension of

2

Fed. R. Civ. P. 41(b) states, in pertinent part: “If the
plaintiff fails to prosecute or to comply with these rules or a
court order, a defendant may move to dismiss the action or any
claim against it.”
3

the deadline, and his motion must set forth good cause why he
cannot file proof of service by that date.
The Clerk’s Office is DIRECTED to serve a copy of this
Order on Kenji Price, United States Attorney for the District of
Hawai`i.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 26, 2018.

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

JONAH LANE VS. UNITED STATES OF AMERICA, ET AL; CV 18-00060 LEKRLP; ORDER REGARDING PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE

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