This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On April 5, 2011, the undersigned noted that "[i]t does not appear from the court file that plaintiff has yet properly effected service of process on defendant Glasscock" and therefore ordered plaintiff to show cause why Glasscock should not be dismissed, and as a result, this case be dismissed in its entirety, for failure to effect service of process within the time prescribed by Rule 4(m).
On April 25, 2011, plaintiff filed a timely response to the order to show cause indicating that plaintiff mistakenly believed that he had effected service of process on Glasscock in August 2010 and requesting that this court grant an extension of the time for service, as provided in Rule 4(m), so that he can "correct his service on Ms. Glasscock at the earliest possible moment." Dckt. No. 27.
Rule 4(m) provides that "[i]f 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." Here, although the 120 period for service has expired, plaintiff has shown good cause for a limited extension of time to serve Glasscock.
Accordingly, IT IS HEREBY ORDERED that:
1. The April 5, 2011 order to show cause is discharged;
2. Plaintiff's request for an extension of time to serve Glasscock is granted;
3. Plaintiff has until June 17, 2011 to serve Glasscock and file a proof of such service with the court; and
4. Failure of plaintiff to comply with this order may result in a recommendation that defendant Glasscock and/or this action be dismissed for failure to follow court orders, for failure to effect service of process within the time prescribed by Rule 4(m), and/or for lack of prosecution under Rule 41(b).
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