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RAMIREZ v. U.S.

United States District Court, N.D. California


February 18, 2004.

SARAH RAMIREZ, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant

The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER

FRCP 4(m) provides that, if service of the summons and complaint is not made upon defendant within 120 days after the filing of the complaint, the court may dismiss the case on its own initiative, provided that notice has been given to plaintiff. Plaintiff filed the complaint in this case on February 28, 2003. Doc #1. On December 2, 2003, the court conducted a case management conference (CMC) in this case. Doc #17. At that CMC, the court informed plaintiff that she was required to serve the summons and complaint on the defendant and file proof of service with the court and that such service was long overdue. The court reset the initial CMC for February 17, 2004. Page 2

As of February 18, 2004, plaintiff has failed to provide the court with proof of service of the summons and complaint upon defendant. The 120-day period prescribed by Rule 4(m) expired almost eight months ago, and the court plainly advised plaintiff at the December 2 CMC of her duties under Rule 4(m). Thus, dismissal of this case is proper. Furthermore, plaintiff failed to appear for the February 17 CMC due, she states in a communication received on that date, to having missed her bus.

  It is true that plaintiff is proceeding pro se in this matter. But "[p]laintiff should be aware that although [s]he is representing [her]self in this action, [s]he is nevertheless obligated to follow the same rules as represented parties." See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir 1987). Lack of awareness of the applicable rules and procedures is no excuse for failure to comply with those rules. See Swimmer v. IRS, 811 F.2d 1343, 1344 (9th Cir 1987). Even were lack of awareness an excuse, the court explicitly directed plaintiff at the December 2 CMC to serve the summons and complaint, and the circumstances of plaintiff's non-appearance on February 17 are of no matter because of her failure to effect service.

  Accordingly, the court DISMISSES this case without Page 3 prejudice. The clerk is directed to close the file and terminate all pending motions.

  IT IS SO ORDERED. Page 1

  U.S. District Court

  Northern District of California

  Notice of Electronic Filing or Other Case Activity

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  The following transaction was received from vrwlc2, COURT STAFF on 2/18/2004 at 11:58 AM PST

  Case Name: Ramirez v. United States of America

  Case Number: 3:03-cv-930

  Filer:

WARNING: CASE CLOSED on 02/18/2004
Document Number: 21
Docket Text:
  ORDER DISMISSING CASE for failure to serve the summons and complaint upon defendant. Signed by Judge Walker on 2/18/04. (vrwlc2, COURT STAFF) (Filed on 2/18/2004)

  The following documents) are associated with this transaction:

Document description: Main Document
  Original filename: N:\COURTNEY\Civil\Ramirez v. United States (03-0930)\ORDER.DISMISS.pdf

  Electronic document Stamp:

  [STAMP CANDStamp_ID=977336130 [Date=2/18/2004] [FileNumber= 1094482-0] [46a6622deebeb67140ad891b88303306fdbe4e9eaOba836872cc5aOd09cbe8a80ecd4 97789711C9 df82a02f5be40d2a8d3f3 951b 72291690647bb1fa0a198 dac]]

20040218

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