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Yu v. Chertoff

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 30, 2007

JIANQIANG YU, PRO SE, PLAINTIFF,
v.
MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; EMILIO GONZALES, DIRECTOR U.S. CITIZENSHIP AND IMMIGRATION SERVICES; CHRISTINA POULOS, ACTING DIRECTOR, CALIFORNIA SERVICE CENTER, U.S. CITIZENSHIP AND IMMIGRATION SERVICES; ROBERT MUELLER, DIRECTOR FEDERAL BUREAU OF INVESTIGATION, DEFENDANTS.

The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DENYING MOTION TO DISMISS AND ORDERING COMPLETION OF SERVICE [Dkt No. 6]

This action seeks judicial intervention in the processing of pro se plaintiff's application to adjust his immigration status to lawful permanent resident. The matter is before the court on defendants' Motion To Dismiss Or Alternatively to Modify Order to Show Cause, contending defects in service of the Summons and Complaint deprive the court of personal jurisdiction over them. Should the court grant plaintiff an additional extension of time to effect service of process, defendants alternatively request a 60-day extension of the response deadline set in the court's September 21, 2007 Order To Show Cause. In his Opposition, plaintiff disputes he failed to serve the four named individual defendants, with evidence of service by mail. Dkt No. 9.

In their Reply, defendants acknowledge plaintiff appears to have served "all but one necessary party, the United States Attorney General." Dkt No. 11,1:22. They provide in their Motion Points and Authorities, as a courtesy to this pro se plaintiff, the text of FED.R.CIV.P. ("Rule") 4(i), setting forth the requirement and the manner of service he must use to properly comply with his obligation to serve, in addition to those defendants already served, the Attorney General of the United States in Washington, D.C. Mot. P&A 3 n.1. Defendants contend they are not authorized to waive required service of process on the U.S. Attorney General. Defendants propose in their Reply their Rule 12(b)(2) Motion To Dismiss "be converted into an order requiring Plaintiff to serve the U.S. Attorney General by U.S. certified mail within the next 30 days to avoid dismissal of the Complaint." Reply 1:23-25. In the event that service is perfected and the Complaint is not dismissed, they further propose to file their responsive pleading to plaintiff's Complaint on or before December 17, 2007, a date within 60 days of the October 16, 2007 date plaintiff served the United States Attorney's Office for this district. The court finds defendants' proposals to be fair and reasonable.

For the foregoing reasons, IT IS HEREBY ORDERED:

1. Plaintiff shall effect service of process on the U.S. Attorney General consistently with Rule 4(i), as described in defendants' Motion and Reply papers, and shall serve and file proof of that service, within 30 days of the date this Order is entered.

2. Assuming plaintiff's timely and proper completion of service, defendants shall file their responsive pleadings on or before December 17, 2007.

3. Should plaintiff fail to effect proper and timely service of process on the U.S. Attorney General as ordered herein, this action will be dismissed without prejudice upon notice from defendants to the court of that failure.

IT IS SO ORDERED.

20071130

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