Nelson v. Astrue

Filing 5

ORDER TO PROVIDE PROOF OF SERVICE OR SHOW CAUSE WHY THIS MATTER SHOULD NOT BE DISMISSED. Show Cause Response due by 1/11/2013, by Judge J Richard Creatura. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TIMOTHY RICHARD NELSON,

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Plaintiff,

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v.
MICHAEL J. ASTRUE, Commissioner
of the Social Security Administration,

CASE NO. 12-cv-05540-RJB-JRC
ORDER TO PROVIDE PROOF OF
SERVICE OR TO SHOW CAUSE
WHY THIS MATTER SHOULD
NOT BE DISMISSED

Defendant.

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This matter has been referred to the United States Magistrate Judge J. Richard

18 Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge rule MJR 4(a)(4),
19 and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 271-72
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(1976).
Because there is no evidence in the record that this case has been served properly,
the Court hereby orders plaintiff to provide proof of service or show cause by January 11,

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2013 as to why this matter should not be dismissed for lack of prosecution.
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ORDER TO PROVIDE PROOF OF SERVICE OR
TO SHOW CAUSE WHY THIS MATTER
SHOULD NOT BE DISMISSED - 1

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DISCUSSION
Fed. R. Civ. P. (4)(m) requires a defendant to be served within 120 days after a

3 complaint is filed. Fed. R. Civ. P. 4(1) requires proof of service to be filed or made to the
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court 1. At this time, although the complaint in this matter was filed on June 19, 2012 and
summonses were issued on June 20, 2012 (see ECF Nos. 1, 2) the record does not show

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that the complaint has been served properly. See also Fed. R. Civ. P. 4(l) (proving
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service).
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Fed. R. Civ. P. 4(i) governs service with respect to complaints against the United
States and against United States agencies, officers and employees. See Fed. R. Civ. P.

11 4(i); see also Villegas v. Astrue, 2012 U.S. Dist. LEXIS 55223 at *1-*2 (C.D. Cal. April
12 18, 2012) (citing Fed. R. Civ. P. 41(b)).
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Fed. R. Civ. P. 4(m) requires the court to provide notice to plaintiff before the

14 matter may be dismissed for lack of prosecution, and Rule 4(i)(4) requires the court to
15 allow a reasonable time for plaintiff to cure a failure to serve multiple entities, if plaintiff
16 has effected service on either the United States Attorney or the Attorney General of the
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United States.

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CONCLUSION

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Plaintiff is hereby ordered to provide proof of service or show cause why this
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matter should not be dismissed for lack of prosecution by January 11, 2013. Failure to
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This Court’s website has instructions regarding ways to accomplish service of
Summons and Complaint: http://www.wawd.uscourts.gov/referencematerials/forms.htm;
24 http://www.wawd.uscourts.gov/documents/SpecialCaseNotices/MDL1407/08.pdf.
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ORDER TO PROVIDE PROOF OF SERVICE OR
TO SHOW CAUSE WHY THIS MATTER
SHOULD NOT BE DISMISSED - 2

1 provide proof of service or show cause likely will result in a Report and
2 Recommendation to dismiss this action. Plaintiff’s action subsequently may be dismissed
3 by the Court.
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Dated this 7th day of December, 2012.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER TO PROVIDE PROOF OF SERVICE OR
TO SHOW CAUSE WHY THIS MATTER
SHOULD NOT BE DISMISSED - 3