IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 23, 2011
VICTORIA REYES; JOSE REYES, JR., PLAINTIFFS,
JOSEPH MODESTO; DAVID JAKABOSKY; MICHELLE DAVIS-TATE; RICHARD WINTERS; AND NANCY MEUER DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiffs filed their First Amended Complaint on September 22, 2010 (First Am. Compl., Dkt. No. 14), and are proceeding without counsel and in forma pauperis. On September 29, 2010, the undersigned ordered service of plaintiffs' First Amended Complaint on the five named defendants. (Order, Sept. 29, 2010, Dkt. No. 16.) In order to effectuate service of the First Amended Complaint on defendants, the court's order required plaintiffs to submit to the United States Marshal within 30 days, among other things, completed USM-285 forms for each defendant to be served. The USM-285 form requires that plaintiffs enter the addresses for service and other information for each defendant to be served.
On October 28, 2010, plaintiffs filed a one-page request for assistance in acquiring the addresses and other information pertaining to the named defendants that plaintiffs require to complete the USM-285 forms. (Dkt. No. 19.) The undersigned denied plaintiffs' request without prejudice. (Order, Nov. 9, 2010, Dkt. No. 20.)
On December 2, 2010, plaintiff Jose Reyes, Jr. filed a request for a 60-day extension of time in which to complete the USM-285 forms and return them to the United States Marshal. (Dkt. No. 21.) The undersigned granted the request for an extension of time. (Order, Jan. 20, 2011, Dkt. No. 23.) Plaintiffs failed to submit the required service-related documents within the extended period of time.
On March 18, 2011, Mr. Reyes filed yet another request for an extension of time in which to complete the USM-285 forms and return them to the United States Marshal. (Dkt. No. 27.) It appears that plaintiffs have secured the service-related information for two of the named defendants, but have not secured the information pertaining to the remaining named defendants. The undersigned grants plaintiffs' request for an extension and provides plaintiffs with 30 additional days to submit the required service related information and documents. This extension constitutes the final extension that the undersigned will approve. If plaintiffs fail to submit the required service-related information and documents to the United Stated Marshal in the time permitted, the undersigned will dismiss plaintiffs' case without prejudice pursuant to Federal Rule of Civil Procedure 4(m).*fn2 To the extent that Mr. Reyes's believes that his apparent incarceration prevents him from submitting the required information and documents to the United States Marshal, the undersigned notes that the second plaintiff in this case, Victoria Reyes, does not appear to be incarcerated. Based on the record before the court, nothing prevents Ms. Reyes from meeting plaintiffs' obligations in regard to service of the First Amended Complaint.
Finally, a Status (Pretrial Scheduling) Conference in this case is set to take place on April 7, 2011. In light of the fact that Mr. Reyes does not anticipate being released from prison until April 13, 2011, and plaintiffs have not yet effectuated service of the First Amended Complaint, the undersigned continues the Status (Pretrial Scheduling) Conference until June 16, 2011.
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiffs' request for an extension of time (Dkt. No. 27) is granted, and plaintiffs shall have 30 days from the date of this order to submit completed USM-285 forms and other previously identified documents to the Untied States Marshal in order to effectuate service of plaintiffs' First Amended Complaint.
2. No further requests for extensions of time to submit the required service-related information and documents to the United States Marshal will be considered.
3. All remaining requirements of the court's service order (Order, Sept. 29, 2010, Dkt. No. 16) remain in effect.
4. The Status (Pretrial Scheduling) Conference in this case presently set to take place on April 7, 2011, is continued until Thursday, June 16, 2011, at 10:00 a.m., in Courtroom 25. Plaintiffs and the defendants who have appeared in the action shall file a joint status report or separate status reports at least seven days prior to the June 16, 2011 Status (Pretrial Scheduling) Conference. (See Order Setting Status Conf. at 2-3, Sept, 29, 2010, Dkt. No. 17.)
IT IS SO ORDERED.