Filed: Apr. 20, 2018
Latest Update: Apr. 20, 2018
Summary: ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO SERVE IN COMPLIANCE WITH RULE 4(m) AND FAILURE TO PROSECUTE AND CONTINUING MANDATORY SCHEDULING CONFERENCE TO JULY 17, 2018 STANLEY A. BOONE , Magistrate Judge . Plaintiff filed this action alleging violation of the Americans With Disabilities Act on December 26, 2017, against Nove Plaza, LLC, Shelly Ann Diedrich, and Raymond Edward. (ECF No. 1.) An order setting the mandatory scheduling conferenc
Summary: ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO SERVE IN COMPLIANCE WITH RULE 4(m) AND FAILURE TO PROSECUTE AND CONTINUING MANDATORY SCHEDULING CONFERENCE TO JULY 17, 2018 STANLEY A. BOONE , Magistrate Judge . Plaintiff filed this action alleging violation of the Americans With Disabilities Act on December 26, 2017, against Nove Plaza, LLC, Shelly Ann Diedrich, and Raymond Edward. (ECF No. 1.) An order setting the mandatory scheduling conference..
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ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO SERVE IN COMPLIANCE WITH RULE 4(m) AND FAILURE TO PROSECUTE AND CONTINUING MANDATORY SCHEDULING CONFERENCE TO JULY 17, 2018
STANLEY A. BOONE, Magistrate Judge.
Plaintiff filed this action alleging violation of the Americans With Disabilities Act on December 26, 2017, against Nove Plaza, LLC, Shelly Ann Diedrich, and Raymond Edward. (ECF No. 1.) An order setting the mandatory scheduling conference issued on this same date, and informed Plaintiff that she was to "diligently pursue service of the summons and complaint" and "promptly file proofs of the service." (ECF No. 3-1 at 2.) Plaintiff was referred to Rule 4 of the Federal Rules of Civil Procedure regarding the requirement of timely service of the complaint. (Id.) Further, Plaintiff was advised that "[f]ailure to comply may result in the imposition of sanctions, including dismissal of unserved Defendants." (Id.) On February 5, 2018, Plaintiff filed a notice that she had served Defendant Diedrich, but no other returns of service have been filed. (ECF No. 4.)
Rule 4(m) of the Federal Rules of Civil Procedure addresses the time requirements for service of the complaint in civil cases. Rule 4(m) provides:
If a defendant is not served within 90 days after the complaint is filed, the court— on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Further, pursuant to Rule 12 of the Federal Rules of Civil Procedure the time to serve a responsive pleading is within twenty one days after being served with the summons and the complaint. Fed. R. Civ. P. 12(a)(1)(A)(i). When a party against whom affirmative relief is sought fails to plead or otherwise defend an action default should be sought. Fed. R. Civ. P. 55(a).
Here, Defendant Diedrich was served on January 29, 2018, has failed to file a time answer. There has been no stipulation to extend time for an answer to be filed nor has Plaintiff sought to have default entered in this action.
Accordingly, Plaintiff is HEREBY ORDERED to show cause in writing within five (5) days from the date of service of this order why this action should not be dismissed for failure to serve the complaint in compliance with Rule 4(m) of the Federal Rules of Civil Procedure and failure to prosecute.
Due to the reassignment of this action, IT IS FURTHER ORDERED that the scheduling conference set for May 24, 2018 at 10:00 in Yosemite is CONTINUED to July 17, 2018, at 10:00 a.m., in Courtroom 9 (SAB).
IT IS SO ORDERED.
