IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 8, 2011
SUSAN LUDWIG, PLAINTIFF,
ADULT PROTECTIVE SERVICES OF SACRAMENTO COUNTY; VERNA MAGNUSON; UNIVERSITY OF CALIFORNIA DAVIS MEDICAL CENTER; MCKINLEY HEALTH CENTER; CITY OF SACRAMENTO POLICE DEPARTMENT; A. CROSBY; MERCY HOSPITAL; AND DOES 1-5, DEFENDANTS.
This case is before the undersigned pursuant to Local Rule 302(c)(21). See 28 U.S.C. 636(b)(1). The complaint was filed in this action over a year ago on February 8, 2010. Dckt. No. 1. Nonetheless, plaintiff still has not served all of the defendants, as required by Federal Rule of Civil Procedure 4(m).*fn1 Fed. R. Civ. P. 4(m) ("If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.").
On November 15, 2010, the court issued an order granting plaintiff's third request for additional time to serve the remaining unserved defendants. Dckt. No. 12. Plaintiff was given until January 31, 2011 to serve the remaining unserved defendants and was specifically admonished that "no further extensions of time to serve [would] be granted." Id. at 2.
Nonetheless, plaintiff has now filed a fourth motion for an extension of time to serve the remaining unserved defendants. Dckt. No. 13. Plaintiff contends that she works full-time as an international flight attendant and that "[d]ue to circumstances beyond [her] control including severe winter weather, resulting in flight cancellations and disruption of work schedule and also due to illness, [she was] unable to serve" the remaining unserved defendants by the January 31 deadline. Id. at 2. Plaintiff now requests that she be given until April 13, 2011 to serve the remaining defendants because she has a surgery scheduled "for February into March" and she will need time to recover from the surgery. Id. at 3.
The court is very reluctant to grant plaintiff's current request in light of the significant amount of time that has passed since this action was filed and in light of the previous admonitions given to plaintiff regarding service in this action. Nonetheless, because plaintiff indicates that these circumstances were out of her control, plaintiff will be granted one final extension of time to April 13, 2011 to serve the remaining unserved defendants. If plaintiff does not serve the remaining unserved defendants and file with the court a proof of service thereon by April 13, 2011, any unserved defendants will be dismissed from this action pursuant to Federal Rule of Civil Procedure 4(m). Failure to comply with this order may also result in the imposition of sanctions, including a recommendation that this action be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b).
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's fourth motion for an extension of time to serve, Dckt. No. 13, is granted.
2. Plaintiff shall have until April 13, 2011 to serve the remaining unserved defendants and file a proof of such service with the court.
3. The status conference currently set for March 30, 2011 is continued to June 29, 2011, at 10:00 a.m. in Courtroom No. 24;
4. By June 15, 2011, the parties shall file status reports (or a joint status report) setting forth the matters referenced in the court's February 8, 2010 order, including the status of service of process;*fn2 and
5. Failure to comply with this order will result in the dismissal of any unserved defendants pursuant to Federal Rule of Civil Procedure 4(m) and may also result in the imposition of sanctions, including a recommendation that this entire action be dismissed for lack of prosecution. See Fed. R. Civ. P. 41(b).