Ocasio-Lozada et al v. USA et al

Filing 40

ORDER denying 37 Motion to Dismiss. We ORDER Plaintiffs to SHOW CAUSE, on or before April 29, 2010, as to why we should not dismiss their claims against the eight unknown Defendants for failure to diligently prosecute. Show Cause Response due by 4/29/2010. Signed by Chief Judge Jose A Fuste on 4/16/2010. (mrj)

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO R A F A E L OCASIO-LOZADA, et al., Plaintiffs, v. U N IT E D STATES OF AMERICA, et al., D e f e n d a n ts . C i v il No. 09-1192 (JAF)

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ORDER O n February 19, 2010, counsel for the United States, a Defendant in this case, submitted a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiffs' action against th e other remaining Defendants, eight unknown agents of the Federal Bureau of Investigation. (D o c k e t No. 37.) Plaintiffs opposed by noting that counsel for the United States does not rep rese n t the eight unknown agents. (Docket No. 39.) C o u n se l states that she does not represent these eight unknown Defendants. (Docket N o . 37.) While we appreciate counsel's desire to expedite the resolution of this case, there is n o prejudice to the eight unknown agents if we permit them to present defenses on their own b e h a lf if and when they receive service of process. We summarily reject this untimely attempt to interpose defenses on behalf of Defendants who have yet to appear in the instant case. A t the same time, we note that five months have elapsed since an earlier order c o n c ern in g a challenge to Plaintiffs' service of process. (See Docket No. 19.) In that order, we

Civil No. 09-1192 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13

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ad m o n ish e d Plaintiffs for the delay engendered by their failure to follow proper procedure. (Id.) M o re than one year has wasted since Plaintiffs filed their complaint in the instant case. (See D o c k e t No. 1.) We, thus, command Plaintiffs to demonstrate by affidavit what discovery d e v ic e s they have diligently employed to discover the identity of the eight unknown Defendants s o that these agents may be served with process. See Fed. R. Civ. P. 26­37. A c c o rd in g ly, we hereby DENY the present motion to dismiss (Docket No. 37). We O R D E R Plaintiffs to SHOW CAUSE, on or before April 29, 2010, as to why we should not d is m is s their claims against the eight unknown Defendants for failure to diligently prosecute. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 16 th day of April, 2010. s /J o s é Antonio Fusté J O S E ANTONIO FUSTE C h ie f U.S. District Judge