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David Tellez v. Cesar A. Atienza

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 16, 2011

DAVID TELLEZ,
PLAINTIFF,
v.
CESAR A. ATIENZA, M.D.,
DEFENDANTS.

The opinion of the court was delivered by: Gary S. United States Magistrate Judge

ORDER DISCHARGING ORDER TO SHOW CAUSE ORDER SETTING FURTHER STATUS UNITED STATES DEPARTMENT OF CONFERENCE REGARDING SERVICE VETERANS AFFAIRS;

On September 27, 2010, Plaintiff David Tellez filed a complaint for damages pursuant to the Federal Tort Claims Act. (Doc. 1.) On September 28, 2010, the Court issued a summons to Defendants Cesar A. Atienza, M.D., and United States Department of Veterans Affairs. (Doc. 6.)

On March 8, 2011, this Court issued an Order to Show Cause why Plaintiff had failed to comply with Rule 4 of the Federal Rules of Civil Procedure regarding service of the summons and complaint upon Defendants. (Doc. 9.) That same date, Plaintiff filed a Proof of Service indicating that Defendant United States Department of Veterans Affairs had been served with process on March 3, 2011. (Doc. 10.)

On March 15, 2011, Plaintiff's counsel filed a declaration indicating, in pertinent part, that in the process of organizing the firm's move back to the downtown area, after a temporary move north, his paralegal inadvertently filed the summons issued in this matter into the firm's case file. (Doc. 12 at 1.) As a result, the matter was not properly calendared, nor were reminders created in the firm's calendar/tickler system. (Doc. 12 at 1-2.) Counsel further indicated that while service was properly effected upon the United States Veteran's Administration, despite due diligence, Defendant Atienza had not yet been served. Nonetheless, counsel advised that a "possible home address had been located [for the doctor] in San Francisco" and renewed efforts would be made to effect service at that location. (Doc. 12 at 2.)

Based on the foregoing, Plaintiff has established good cause for his failure to comply with Rule 4(m) of the Federal Rules of Civil Procedure. Accordingly, the order to show cause is hereby DISCHARGED.

Because Defendant Atienza has not yet been served with the summons and complaint, this Court VACATES the Status Conference set for March 23, 2011, and CONTINUES that Status Conference to April 21, 2011, at 10:00 a.m. in Courtroom 10. Finally, Plaintiff shall file a status report no later than April 15, 2011, regarding his specific efforts to effect service upon Defendant Atienza.

IT IS SO ORDERED.

Austin 6i0kij

20110316

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