Mariano v. Colvin

Filing 12

ORDER ADOPTING, IN PART, 10 REPORT AND RECOMMENDATION; DIRECTING PLAINTIFF TO PROPERLY SERVE COMPLAINT. Case Management Deadline set for 3/17/2016. Signed by Judge Stanley A Bastian. (JW, Operations Clk)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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9 DANIEL MARIANO,
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Plaintiff,

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v.

No. 2:15-cv-0157-SAB

ORDER ADOPTING, IN PART,

12 CAROLYN W. COLVIN, Commissioner

REPORT AND

13 of Social Security,

RECOMMENDATION;

Defendant.

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DIRECTING PLAINTIFF TO

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PROPERLY SERVE

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COMPLAINT

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Before the Court is the Report and Recommendation to Dismiss, Without

18 Prejudice, for Lack of Service, ECF No. 10, which was filed on December 31,
19 2015.
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Magistrate Judge John Rodgers recommends dismissing this action for

21 failing to serve the Office of the United States Attorney. No response to the R & R
22 has been timely filed; however, Plaintiff filed an Amended Complaint on January
23 5, 2016. It appears from the record that Plaintiff has made an attempt to serve his
24 complaint, see ECF No. 9.1 Nevertheless, Plaintiff’s efforts do not comport with
25 Fed. R. Civ. P. 4(i), which states:
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It appears that Plaintiff mailed a copy of his complaint via certified mail to the
28 Social Security Administration, Office of Disability Adjudication and Review, in
ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATION;
DIRECTING PLAINTIFF TO PROPERLY SERVE COMPLAINT ~ 1
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(i) Serving the United States and Its Agencies, Corporations,
Officers, or Employees.
(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint to the
United States attorney for the district where the action is brought--or
to an assistant United States attorney or clerical employee whom the
United States attorney designates in a writing filed with the court
clerk--or
(ii) send a copy of each by registered or certified mail to the
civil-process clerk at the United States attorney’s office;
(B) send a copy of each by registered or certified mail to the
Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or
officer of the United States, send a copy of each by registered or
certified mail to the agency or officer.
(2) Agency; Corporation; Officer or Employee Sued in an Official
Capacity. To serve a United States agency or corporation, or a United
States officer or employee sued only in an official capacity, a party
must serve the United States and also send a copy of the summons and
of the complaint by registered or certified mail to the agency,
corporation, officer, or employee.
(3) Officer or Employee Sued Individually. To serve a United States
officer or employee sued in an individual capacity for an act or
omission occurring in connection with duties performed on the United
States' behalf (whether or not the officer or employee is also sued in an
official capacity), a party must serve the United States and also serve
the officer or employee under Rule 4(e), (f), or (g).
(4) Extending Time. 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; or
(B) serve the United States under Rule 4(i)(3), if the party has
served the United States officer or employee.

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Spokane, Washington, and also to the Social Security Administration, Office of
28 Disability Adjudication and Review in Falls Church, Virginia.
ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATION;
DIRECTING PLAINTIFF TO PROPERLY SERVE COMPLAINT ~ 2

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The Court agrees with Magistrate Judge Rodgers that the court file

2 indicates that Plaintiff has not complied with Fed. R. Civ. P. 4(i)(1) and that
3 the complaint has not been properly serviced on Defendant. Nevertheless,
4 the Court will give Plaintiff one more try to cure the defect in service.
5 Plaintiff is instructed that failure to follow Fed. R. Civ. P. 4(i)(1)(A) will
6 result in the dismissal of this action, without prejudice.
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Accordingly, IT IS HEREBY ORDERED:

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1. The Court adopts, in part, the Report and Recommendation, ECF No. 10.

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2. Within 14 days from the date of this Order, Plaintiff is directed to

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comply with the Fed. R. Civ. P. 4(i) and file with the Court proof that

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Plaintiff’s Complaint and/or Amended Complaint has been properly served.

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IT IS SO ORDERED. The District Court Executive is hereby directed to

13 file this Order and provide copies to counsel.
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DATED this 29th day of February, 2016.

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Stanley A. Bastian

United States District Judge

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ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATION;
DIRECTING PLAINTIFF TO PROPERLY SERVE COMPLAINT ~ 3