Zogheib v. Wolfson

Filing 6

ORDER that 1 Petition for Writ of Mandamus is DENIED without prejudice. IT IS FURTHER ORDERED that 5 Motion for Hearing is DENIED without prejudice. IT IS FURTHER ORDERED that Zogheib must do the following by 12/15/2014: (1) file a proper co mplaint in this action, (2) effectuate service of process (summons and complaint) on the defendant in compliance with the rules of this court, and (3) file proof of that service. Failure to complete any one of these may result in the dismissal of this action with prejudice. Signed by Judge Jennifer A. Dorsey on 11/13/2014. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Jihad Anthony Zogheib,

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Petitioner,

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Case No.: 2:14-cv-855-JAD-NJK

v.

Order

Steve Wolfson, in his Capacity as District
Attorney, Clark County, Nevada,
Respondent.

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Petitioner Jihad Anthony Zogheib commenced this action by filing a Petition for Writ

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of Mandamus alleging overzealous prosecution by the Clark County District Attorney. Doc.

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1 at 1-4. Zogheib also moves for a hearing on his mandamus petition. Doc. 5. Zogheib has

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put the cart before the horse: he needs to first file a complaint, have a summons issued, and

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effectuate proper service of process before the relief he seeks can even be considered.

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Federal Rule of Civil Procedure 81(b) abolished the writ of mandamus. Relief

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previously available by mandamus petition “may be obtained by appropriate actions or

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motion under” the Federal Rules of Civil Procedure. FRCP 2 teaches that “there is one form

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of action—the civil action.” And FRCP 3 tells us simply that “A civil action is commenced

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by filing a complaint with the court.” The next step in the civil-action process is prescribed

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by FRCP 4(b), which tells us “On or after filing the complaint, the plaintiff may present a

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summons to the clerk for signature and seal. If the summons is properly completed, the clerk

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must sign, seal, and issue it to the plaintiff for service on the defendant. A summons . . .

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must be issued for each defendant to be served.” FRCP 4(c)(1) emphasizes, “A summons

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must be served with a copy of the complaint. The plaintiff is responsible for having the
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summons and complaint served within the time allowed by Rule 4(m) and must furnish the

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necessary copies to the person who makes service.”1

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Zogheib has skipped these critical, initial steps. His petition, which is not styled as a

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complaint, is not a complaint, and it does not appear that he has sought the issuance of any

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subpoena or effectuated service of any of his filings on the defendant. Although these

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deficiencies would permit me to dismiss this action without prejudice, in the interest of

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justice and leniency, I instead deny the petition for writ of mandamus [Doc. 1] and the

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request for a hearing on that petition [Doc. 5] without prejudice and give Zogheib until

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December 15, 2014, to (1) file a proper complaint, (2) effectuate service of process on the

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defendant in compliance with the rules of this court, and (3) file proof of service. Zogheib is

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strongly cautioned that failure to comply with any portion of this order may result in the

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dismissal of this action with prejudice.

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Accordingly, it is HEREBY ORDERED that Zogheib’s Petition for Writ of
Mandamus [Doc. 1] is DENIED without prejudice;
IT IS FURTHER ORDERED that Zogheib’s Motion for Hearing on the Petition [Doc.
5] is DENIED without prejudice;
IT IS FURTHER ORDERED that Zogheib must do the following by December 15,

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2014: (1) file a proper complaint in this action, (2) effectuate service of process

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(summons and complaint) on the defendant in compliance with the rules of this court,

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and (3) file proof of that service. Failure to complete any one of these may result in the

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dismissal of this action with prejudice.

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DATED: November 13, 2014.
_________________________________
Jennifer A. Dorsey
United States District Judge

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Even if I were to liberally construe the petition as a complaint, it does not appear that Zogheib
has effectuated service. FRCP 4(m) specifies that “[i]f 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.” More than 120 days have passed since the petition was filed.
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