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Shavers v. Young

IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


September 20, 2010

JESSE LEE SHAVERS, JR., PLAINTIFF,
v.
COUNSELOR YOUNG, DEFENDANT.

The opinion of the court was delivered by: Otis D. Wright, II, District Judge

ORDER

Plaintiff has filed a request for case status. [16] Curiously, there has been no appearance by any defendant nor a request for entry of default. A review of the docket explains why.

On May 9, 2008 Plaintiff filed his first amended complaint, [12] attached to which is a proof of service dated April 24, 2008. In it, he names Counselor Young as the sole defendant. The proof of service fails to provide a description of the documents served and upon whom. It also fails to indicate a case number. More importantly no mention is made of a summons being served on the defendant advising the defendant of the name of the court and parties, the name and address of the plaintiff, the time within which the defendant must appear and defend and the consequences of failure to appear and defend. (Fed R Civ Proc Rule 4(a).

In general, "[a] summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service." (Rule 4(c)(1).) Lastly, there has been a failure to comply with Rule 4(m). Fed R Civ Proc 4(m) provides in part:

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.

Here, the Amended Complaint was filed May 9, 2008. By rule, proof of service of the summons and complaint was to have been filed with the court no later than September 8, 2008, over two years ago.

IT IS HEREBY ORDERED that Plaintiff must file a proof of service of the summons and complaint on defendant(s) within 90 days of this order or suffer dismissal of this complaint without prejudice.

20100920

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