Filed: Jul. 08, 2019
Latest Update: Jul. 08, 2019
Summary: ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY DEFENDANT ADVANCE/NEWHOUSE PARTNERSHIP SHOULD NOT BE DISMISSED FOR FAILURE TO SERVE IN COMPLIANCE WITH RULE 4(m) FIVE DAY DEADLINE STANLEY A. BOONE , Magistrate Judge . Plaintiff Jack Horton filed this action in the Superior Court for the State of California, County of Kings against Defendants Charter Communications Inc., Advance/Newhouse Partnership, and Bright House Networks, LLC. (ECF No. 1 at 25-27.) On November 1, 2018, Defendants Charter Co
Summary: ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY DEFENDANT ADVANCE/NEWHOUSE PARTNERSHIP SHOULD NOT BE DISMISSED FOR FAILURE TO SERVE IN COMPLIANCE WITH RULE 4(m) FIVE DAY DEADLINE STANLEY A. BOONE , Magistrate Judge . Plaintiff Jack Horton filed this action in the Superior Court for the State of California, County of Kings against Defendants Charter Communications Inc., Advance/Newhouse Partnership, and Bright House Networks, LLC. (ECF No. 1 at 25-27.) On November 1, 2018, Defendants Charter Com..
More
ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY DEFENDANT ADVANCE/NEWHOUSE PARTNERSHIP SHOULD NOT BE DISMISSED FOR FAILURE TO SERVE IN COMPLIANCE WITH RULE 4(m)
FIVE DAY DEADLINE
STANLEY A. BOONE, Magistrate Judge.
Plaintiff Jack Horton filed this action in the Superior Court for the State of California, County of Kings against Defendants Charter Communications Inc., Advance/Newhouse Partnership, and Bright House Networks, LLC. (ECF No. 1 at 25-27.) On November 1, 2018, Defendants Charter Communications Inc. and Bright House Networks, LLC removed the action to the Eastern District of California. (ECF No. 1.)
On November 2, 2018, an order setting the mandatory scheduling conference issued informing Plaintiff that he was to "diligently pursue service of the summons and complaint" and "promptly file proofs of the service." (ECF No. 5 at 1.) Plaintiff was referred to Rule 4 of the Federal Rules of Civil Procedure regarding the requirement of timely service of the complaint. (Id. at 1-2.) Further, Plaintiff was advised that "[f]ailure to comply may result in the imposition of sanctions, including dismissal of unserved Defendants." (Id. at 2.) Plaintiff has not filed a proof of service for Defendant Advance/Newhouse nor has the defendant made an appearance in this action.
A joint scheduling report was filed by the removing defendants and Plaintiff on January 3, 2019. (ECF No. 12.) However, there was no mention of Advance/Newhouse Partnership included in the joint statement. (Id.)
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, Plaintiff has not filed a proof of service for Defendant Advance/Newhouse Partnership showing that the defendant has been served as required by Rule 4(m). Accordingly, Plaintiff is HEREBY ORDERED to show cause in writing within five (5) days from the date of service of this order why Defendant Advance/Newhouse not be dismissed from this action for failure to serve the complaint in compliance with Rule 4(m) of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.
