Piatt v. Nooth et al

Filing 180

Amended Order. The Court GRANTS Plaintiff's "Motion for Late Filing in Response to Show Cause Order" 176 . Because Plaintiff's response to the Order to Show Cause does not establish service of process was effected on Defendant John Richardson within the time provided by Fed. R. Civ. P. 4(m), Plaintiff's claims against Defendant John Richardson are hereby DISMISSEDwithout prejudice. The Order 178 entered by this Court on February 26, 2014,is hereby STRICKEN from the record and superseded by this Amended Order as it contained an error in the Defendant's name. Signed on 03/10/2014 by Judge Anna J. Brown.See attached 3 page Amended Order. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BRIAN SCOTT PIATT,
Case No. 3:10-cv-00932-BR
Plaintiff,
AMENDED ORDER
v.

MARK NOOTH, et al.,
Defendants.

BROWN, Judge.

Plaintiff brings this civil rights action pro se.
January

17,

requiring

2014,

Plaintiff

this
to

Court

issued an Order

show cause

to

On
Show Cause

in writing within 14

days

thereof why Plaintiff's claims against Defendant John Richardson
should

not

be

dismissed.

Currently

before

the

Court

are

Plaintiff's "Motion for Late Filing in Response to Order to Show
Cause"

[176] and Declaration [177].

1 - AMENDED ORDER -

The Court GRANTS Plaintiff's Motion and accepts Plaintiff's
Declaration as a

timely response to the Order to Show Cause.

However, because Plaintiff's Declaration does not establish that
Defendant John Richardson was adequately served with process in
this action, Plaintiff's claims against him are dismissed.
In his Declaration,

Plaintiff

states

that

Susan Beal,

a

supervising officer with the Lane County Community Corrections,
informed Plaintiff she would accept the Summons and Complaint from
the U.S. Marshal's Service and deliver them to her client, John
Richardson.

Unfortunately,

as

well-meaning

as

Ms.

Beal's

assurance may have been, the Court can locate no authority to the
effect that service of the Summons and Complaint on a parole or
probation officer is sufficient under Fed. R. Civ. P. 4(e) or the
concurrent state laws governing service.
"[E]ven if a person states that he or she is authorized to
accept service, that is not proof that the person actually has the
authority to do so."

U. S.

Commodity Futures Trading Comm 'n v.

Paron Capital Mgmt., LLC, 2012 WL 1156396 *2 (N.D. Cal., April 6,

2012) .

Rule 4 requires that the purported agent have actual

authority for service to be adequate.

See Pochiro v. Prudential

Ins. Co. of Am., 827 F.2d 1246, 1248-89 (9th Cir. 1987)

on

an

attorney

is

insufficient

unless

attorney

had

(service
actual

authority from client to accept service on client's behalf).

2 - AMENDED ORDER -

CONCLUSION

For these reasons, the Court GRANTS Plaintiff's "Motion for
Late Filing in Response to Show Cause Order"

[176] .

Because

Plaintiff's response to the Order to Show Cause does not establish
service of process was

effected on Defendant

within the time provided by Fed.

R.

Civ.

P.

claims against Defendant John Richardson are

John Richardson

4(m),

Plaintiff's

hereby DISMISSED

without prejudice.

The Order [178] entered by this Court on February 26, 2014,
is hereby STRICKEN from the record and superseded by this Amended
Order as it contained an error in the Defendant's name.
IT IS SO ORDERED.
DATED this lOth day of March, 2014.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

3 -

AMENDED ORDE~: \tJsers\sdixon\AppData\Local \Temp\3\notes258C9C\10-932piatt0303order. wpd