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Thomas v. Schwarzenegger

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


September 20, 2010

KENNETH S. THOMAS, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, GOVERNOR OF THE STATE OF CALIFORNIA, JAMES E. TILTON, DIRECTOR OF CDCR DEFENDANT.

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

ORDER

In reviewing this matter in order to ascertain the reason for the apparent lack of prosecution, the question arises as to why there has been no appearance by either defendant nor a request for entry of default. A review of the docket explains why.

On June 20, 2008 Plaintiff filed his second amended complaint, [14] attached to which is no proof of service. Indeed, there is no proof of service on the original complaint. More importantly no mention is made of a summons being served on either 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 Second Amended Complaint was filed June 20, 2008. By rule, proof of service of the summons and complaint was to have been filed with the court no later than October 20, 2008, nearly two years ago.

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

20100920

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