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Allen v. Mayhew

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 24, 2009

MARK S. ALLEN, PLAINTIFF,
v.
MATTIE MAYHEW, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1981. Following an order granting in part defendants' motion to dismiss, plaintiff filed a notice of an interlocutory appeal. Prior to the notice of appeal, Plaintiff was ordered to effect proper service against the two remaining defendants in this case, Mattie and Ricky Mayhew, within 60 days of the March 27, 2009 order.

Given Plaintiff's interlocutory appeal, he may have been under the impression that his time for properly serving the Mayhew defendants was tolled during the appeal. However, the interlocutory appeal did not divest this court of jurisdiction over the remaining issues. As such, the time for Plaintiff to effect proper service on the defendants, and notify the court of such service, has now past. In addition, the Ninth Circuit Court of Appeals has dismissed his appeal for lack of jurisdiction. The entire matter is now back in this court. Nevertheless, as Plaintiff may have thought he was not under a time constrain for effecting service during the pendency of his appeal, the court will provide him an additional short opportunity to properly serve the defendants.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff is ordered to effect proper service, pursuant to Rules 4 and 5 of the Federal Rules of Civil Procedure, against defendants Mattie Mayhew and Ricky Mayhew within 30 days of the date of this order;

2. Within 10 days after properly serving defendants Mattie Mayhew and Ricky Mayhew, Plaintiff shall file with the court the return of service for each defendant; and

3. Once proper service of process has been completed, the remaining defendants shall file an answer within 20 days.

20090624

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