Garcia v. Sena et al
Filing
26
ORDER by Chief Magistrate Judge Carmen E. Garza granting 18 Motion to Quash. Service of summons and complaint as to Defendants John Doe 1 and Officer Santino due by 12/13/2020. (crc)
Case 2:20-cv-00601-GJF-CG Document 26 Filed 10/28/20 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
VICTOR GARCIA,
Plaintiff,
v.
CV No. 20-601 GJF/CG
ALBERT SENA, et al.,
Defendants.
ORDER QUASHING PLAINTIFF’S SUMMONS
AS TO DEFENDANTS JOHN DOE 1 AND OFFICER SANTINO
THIS MATTER is before the Court on Defendants John Doe 1 and Officer
Santino’s Special Entry of Appearance and Motion to Quash Summons (the “Motion”),
(Doc. 18), filed October 13, 2020; Plaintiff’s Response to Defendant’s Special Entry of
Appearance and Motion to Quash Summons (the “Response”), (Doc. 23), filed October
21, 2020; and Defendants John Doe 1 and Officer Santino’s Reply in Support of Motion
to Quash, (Doc. 24), filed October 26, 2020. The Court, having reviewed the Motion, the
Response, the Reply, and noting the Motion is stipulated, finds the Motion is well-taken
and will grant the Motion as set forth below.
In the Motion, Defendants John Doe 1 and Officer Santino ask the Court to
quash Plaintiff’s summons, arguing that Plaintiff (1) failed to timely serve Defendants
John Doe 1 and Officer Santino, (2) improperly served them at their place of
employment, and (3) in any event cannot serve unknown defendants. (Doc. 18 at 2).
Defendants John Doe 1 and Officer Santino further ask the Court to deny Plaintiff any
additional time to properly serve the summons and complaint, and to deny Plaintiff leave
to amend the complaint, contending that no amendment will render the summons and
Case 2:20-cv-00601-GJF-CG Document 26 Filed 10/28/20 Page 2 of 3
complaint proper. Id. at 4-6; see also (Doc. 24 at 3-4). In his Response, Plaintiff
stipulates to the Motion, and further asks the Court to grant him leave to amend the
complaint. (Doc. 23 at 7).
Since the parties agree that the summons should be quashed as to Defendants
John Doe 1 and Officer Santino, the Court will grant the Motion. However, the Court will
not address Plaintiff’s request to amend his complaint, (Doc. 23 at 5-7), or Defendants
John Doe 1 and Officer Santino’s argument against such amendment as barred by the
statute of limitations, (Doc. 18 at 4-6); (Doc 24 at 3-4). Insofar as Plaintiff requests leave
to amend his complaint and Defendants John Doe 1 and Officer Santino oppose such
leave, Plaintiff is instructed to file a formal motion on the record for consideration by the
presiding judge.
IT IS THEREFORE ORDERED that Defendants John Doe 1 and Officer
Santino’s Special Entry of Appearance and Motion to Quash Summons, (Doc. 18), is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall have until December 13, 2020, to
properly serve Defendants John Doe 1 and Officer Santino, consistent with the Court’s
previous Order Extending Plaintiff’s Time to Serve Summons and Complaint, (Doc. 6),
and Second Order Extending Plaintiff’s Time to Serve Summons and Complaint, (Doc.
20). See FED. R. CIV. P. 4(m); see also Khalsa v. U.S. Bank, N.A., No. 1:15-cv-1010
WJ/KBM, 2016 WL 8914538, *4 (D.N.M. Apr. 6, 2016) (quashing plaintiff’s summons
and granting plaintiff sixty days to perfect service).
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Case 2:20-cv-00601-GJF-CG Document 26 Filed 10/28/20 Page 3 of 3
IT IS SO ORDERED.
___________________________________
THE HONORABLE CARMEN E. GARZA
CHIEF UNITED STATES MAGISTRATE JUDGE
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