IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 7, 2011
MARK A. GRANT, PLAINTIFF,
UNITED STATES OF AMERICA, ET AL., DEFENDANT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
On July 7, 2011, the undersigned conducted a status (pretrial scheduling) conference in this case.*fn1 (Minutes, Dkt. No. 40.) Plaintiff, who is proceeding without counsel, appeared on his own behalf. Assistant United States Attorney Yoshinori H. T. Himel appeared on behalf of the following named defendants: United States of America, "United States of America Department of Veterans Affairs," and "Veterans Administration San Francisco Veterans Administration Medical Center" (collectively, the "Federal Defendants"). Attorney Ian A. Fraser-Thomson appeared on behalf defendants Mercury Insurance Group and Mary Pickett.*fn2
Although the undersigned was prepared to enter a scheduling order in this case, plaintiff requested at the scheduling conference that the court wait until October 2011 to schedule dates in this case in light of several pleading-related or service-related motions that are either pending before this court or that the parties have signaled might be filed. These motions include plaintiff's motion for judicial review of the "scope of employment certification" under the Westfall Act, 28 U.S.C. § 2679(d) (Dkt. No. 31); plaintiff's motion for leave to amend his complaint (Dkt. No. 32); and the Federal Defendants' potential motion to dismiss plaintiff's complaint for insufficient service of process, ostensibly pursuant to Federal Rule of Civil Procedure 12(b)(5) (see Joint Status Report at 1-2, Dkt. No. 33). Counsel for the Federal Defendants expressed no objection to plaintiff's request. Although the undersigned ordinarily would not grant such a request to delay the scheduling of a case, the undersigned grants plaintiff's unopposed request in light of the number of unresolved matters relating to the nature of plaintiff's complaint and the sufficiency of service of process on the Federal Defendants. Accordingly, the undersigned does not presently enter a scheduling order in this case. As a result, the undersigned also stays formal discovery in this matter until a further status (pretrial scheduling) conference has been held; the parties may, however, agree among themselves to engage in discovery in the interim.
The undersigned briefly addresses the Federal Defendants' contention in the Joint Status Report that plaintiff has not properly effectuated service on them pursuant to Federal Rule of Civil Procedure 4(i), and that the 120-day limit on service provided in Federal Rule of Civil Procedure 4(m) expired on June 9, 2011. (See Joint Status Report at 1-2.) The "Federal defendants contend that process service is defective, including lack of certified mail service on the Department of Veterans Affairs; on the VA Medical Center in San Francisco to the extent that plaintiff may contend it is a suable entity; and on the Civil Process Clerk in the United States Attorney's Office." (Id.) Although the Federal Defendants raised this defense in their answer to the complaint (Answer at 7, Dkt. No. 25), they did not file a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) prior to their first appearance in this case on March 9, 2011 (Dkt. No. 12), and answering the complaint on April 7, 2011. Plaintiff appears to maintain that he properly served the Federal Defendants, and appears to rely on a proof of service that he filed on February 18, 2011. (Proof of Serv., Dkt. No. 7.)
As no motion to dismiss for insufficient service of process has been
filed or is presently before the court, the undersigned does not
resolve the issue of the sufficiency of service here.*fn3
However, as the undersigned stated at the scheduling
conference, plaintiff will be permitted 30 additional days from the
date of this order in which to ensure that service of process on the
Federal Defendants has been effectuated consistent with Federal Rule
of Civil Procedure 4(i). Alternatively, if plaintiff still believes
that he already properly served the Federal Defendants with process,
he may file a statement to that effect prior to expiration of the 30
days. As to the latter course of action, however, plaintiff is advised
that if the court finds, in response to a motion filed by the Federal
Defendants, that service of process was not proper,
plaintiff might face a recommendation that his case be dismissed.
For the reasons stated above, IT IS HEREBY ORDERED that:
1. Plaintiff is granted 30 days from the date of this order to effectuate proper service of process consistent with Federal Rule of Civil Procedure 4(i). Within seven days of the completion of such service, plaintiff shall file a written notice of the same. Alternatively, if plaintiff maintains that he properly served the Federal Defendants with process and need not ensure proper service at this point, he may file a statement to that effect within 30 days of the date of this order.
2. A further status (pretrial scheduling) conference shall be held before the undersigned on Thursday, October 6, 2011, at 10:00 a.m., in Courtroom 25. The parties shall file a joint status report at least seven days in advance of the status (pretrial scheduling) conference.
3. Formal discovery in this matter is stayed until the further status (pretrial scheduling) conference has been held. However, the parties may agree among themselves to engage in discovery in the interim.
IT IS SO ORDERED.