IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 22, 2009
KATHLEEN SEIFERT, PLAINTIFF,
RICHARD WERNER, DEFENDANT.
Defendant's motion to dismiss and a status conference came on regularly for hearing December 10, 2008. Kenneth Pratt appeared for plaintiff. Defendant Werner appeared telephonically in propria persona. Upon review of the documents in support and opposition, upon hearing the arguments of counsel, upon review of the court's file, and good cause appearing therefor, THE COURT FINDS AND ORDERS AS FOLLOWS:
1. The motion to dismiss is denied. Although defendant has not yet been properly served,*fn1 the court finds plaintiff has made good faith efforts to timely effect service on defendant.
The court therefore declines to recommend dismissal for failure to serve summons within the 120 days allowed under Federal Rule of Civil Procedure 4(m).
2. Plaintiff has exhausted all means to serve defendant by the methods allowed under Federal Rule of Civil Procedure 4 and the state methods incorporated therein. The California Code of Civil Procedure allows for service by publication "if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that... a cause of action exists against the party upom whom service is to be made...." The record here establishes that requirement. Within fifteen days, plaintiff shall submit a proposed order for service by publication.
3. The parties at the hearing agreed that this action is subject to arbitration and also agreed to referral to the court's Voluntary Dispute Resolution Program (VDRP) prior to referral to arbitration. Accordingly, this matter is referred to VDRP. The VDRP process shall be completed no later than March 31, 2009. The Clerk of Court shall serve a copy of this order on the court's VDRP coordinator.
4. In the event the VDRP process does not resolve the matter, this action is ordered to arbitration. The parties shall select a neutral arbitrator and proceed to arbitration in accordance with the attorney/client fee agreement. The parties shall advise the court when arbitration is completed.
5. Except for service by publication and submission to VDRP, this action is stayed. No responsive pleadings need be filed in the federal court action; rather, they will be filed in the arbitration. Because this matter is subject to arbitration, any further pleadings filed in federal court will be stricken.