The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER RESETTING MOTION FOR SUMMARY JUDGMENT HEARING TO OCTOBER 8, 2009 AND ORDER TO SHOW CAUSE AS TO PLAINTIFF BRONCEL
On August 18, 2009, plaintiff Przemyslaw Broncel ("Plaintiff") filed an ex parte application to continue the motion for summary judgment hearing set for September 8, 2009, to October 8, 2009. On August 20, 2009, defendant H&R Transport, LTD ("Defendant") filed a letter agreeing to Plaintiff's request to change the hearing date. The Court has reviewed its calender, and will not be able to hear this matter on October 8, 2009. The Court, however, will be able to continue the hearing to October 13, 2009, at 2:00 p.m. Accordingly, pursuant to the parties' stipulation, the Court will continue the hearing on the motion for summary judgment from September 8, 2009, to October 13, 2009, at 2:00 p.m. in Courtroom 2.
Additionally, although the court granted Plaintiff's motion to dismiss Defendants Jose Amezquita, Cayetano Cruz, and South Bound Express Co., Inc. (See Court's September 3, 2008 Order), it appears that Plaintiff has not served Defendant Randy Wilson ("Wilson"), who is a Canadian resident. See Parties' May 15, 2009 Joint Scheduling Report at page 2. On March 13, 2008, Plaintiff filed his action in the California Superior Court, County of Merced. On April 9, 2008, Defendant H & R Transport filed a notice of removal to the U.S. District Court for the Eastern District of California. Plaintiff is in violation of Rule 4(m) because under the Rule, Plaintiff has not served Defendant Wilson within 120 days after the complaint was filed. Rule 4(m) provides, "If a defendant is not served within 120 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." See Fed. R. Civ. P. 4(m). Plaintiff is also in violation of L.R. 5-135(d) because under the Local Rule, Plaintiff is required to effectuate service upon all parties of all documents submitted to the court. Accordingly, the court will order Plaintiff to show cause why Defendant Wilson should not be dismissed from this action due to Plaintiff's violation of Rule 4(m).
For the reasons stated above, the court HEREBY ORDERS that:
1. The Motion for Summary Judgment hearing set for September 8, 2009 is CONTINUED to October 13, 2009, at 2:00 p.m. in courtroom 2;
2. Plaintiff must show cause why Defendant Wilson should not be dismissed from this action for violation of Rule 4(m);
3. Plaintiff show cause in writing on or by October 6, 2009, by 4:00 p.m.*fn1 ; and
4. A hearing on the order to show cause will be held on October 13, 2009, at 2:00 p.m. in Courtroom 2.