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Brent Allan Winters, et al v. Delores Jordan

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 15, 2012

BRENT ALLAN WINTERS, ET AL., PLAINTIFFS,
v.
DELORES JORDAN, ET AL., DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

On March 15, 2012, the undersigned conducted a status (pretrial scheduling) conference in this case. It appears from the plaintiffs' status report and the court's docket that defendant Cheryl Wade remains unserved after nearly three years of litigation.*fn1 An un-executed summons filed on January 27, 2010, reflects that Wade has not been served (Dkt. No. 104). The docket does not reflect any additional efforts on plaintiffs' part to effectuate service of process or to assist the U.S. Marshal in effectuating service.*fn2

As stated at the status conference, the undersigned is inclined to recommend the dismissal of Wade without prejudice pursuant to Federal Rule of Civil Procedure 4(m). In relevant part, Rule 4(m) provides:

(m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

However, at the status conference, plaintiff Susan Winters represented that she might have an address at which Wade may be served.

Taking Susan Winters's representation at face value, the undersigned provides plaintiffs with 30 days from March 15, 2012, in which to effectuate service on Wade. At the conclusion of this 30-day period, plaintiffs shall file a declaration under penalty of perjury that explains their efforts to serve Wade. Absent a showing of good cause supporting the grant of additional leave to serve Wade, the undersigned will recommend that Wade be dismissed from this action without prejudice pursuant to Rule 4(m).

Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiffs shall have 30 days from March 15, 2012, in which to effectuate service of process on defendant Cheryl Wade.

2. By the close of the above-described 30-day period, plaintiffs shall file a declaration under penalty of perjury that explains their efforts to serve Wade.

IT IS SO ORDERED.


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