IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 23, 2012
GEORGE S. LOUIE,
AIAD & HODA SAMUEL; KETAN INC. CONFERENCE; FED. R. CIV. P. DBA LOW COST LIQUORS; RATILAL 4(M) NOTICE PATEL; VASANTI PATEL; ALKA JAIN DBA MAX PLUS; ANA & JOSE MARTINEZ DBA TAQUERIA AY JALISCO; SUSAN T. LEE, DDS, INC. DBA FAMILY AND LOGMETIC DENTISTRY,
The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
ORDER CONTINUING STATUS (PRETRIAL SCHEDULING)
Plaintiff was required to respond to an Order filed October 10, 2012, by either filing proof that Defendant Susan T. Lee, DDS, Inc. dba Family and Logmetic Dentistry was served with process or a document showing good cause for Plaintiff's failure to serve this Defendant within the 120-day period prescribed in Federal Rule of Civil Procedure 4(m). (ECF No. 13.) This filing was due no later than October 19, 2012. Id.
Plaintiff responded to the October 10th Order in a writing filed on October 19, 2012, as follows:
Plaintiff filed this matter in propria persona. However, it appears that the summons issued by the Court did not include [Defendant Susan T. Lee, DDS, Inc. dba Family and Logmetic Dentistry ("Defendant")]. Not recognizing this, Plaintiff, a non-attorney, sent Defendant a Waiver of Service of Summons by certified mail, along with a copy of the summons and complaint.
In late May 2012, [Keith D. Cable] substituted into the case as counsel for Plaintiff.
On June 21, 2012, Defendant faxed the Waiver back to Plaintiff's counsel's office, along with a photocopy of the envelope.
In late June 2012, Plaintiff's counsel received correspondence from attorney Robert Lorbeer, who claimed to represent Defendant. In his correspondence, Mr. Lorbeer requested that Defendant be dismissed from the action since neither the docket nor the summons reflected Defendant as being a party to the action. Plaintiff's counsel replied, offering to dismiss the action against Defendant for a waiver of any potential fees and costs. There has been no reply from Mr. Lorbeer, nor did Mr. Lorbeer subsequently participate in the preparation of the Joint Status Report.
At this juncture, Plaintiff would request that the Court issue an amended summons adding Defendant so that service can be effectuated.
(ECF No. 16, 1:23-2:15.)
The Clerk's office issued a summons as to Defendant Susan T. Lee, DDS, Inc. dba Family and Logmetic Dentistry on October 22, 2012. (ECF No. 17). Plaintiff is granted an extension under Federal Rule of Civil Procedure ("Rule") 4(m) to effectuate service on Defendant Susan T. Lee, DDS, Inc. dba Family and Logmetic Dentistry until and including November 23, 2012. Plaintiff is notified under Rule 4(m) that failure to serve Defendant Susan T. Lee, DDS, Inc. dba Family and Logmetic Dentistry with process on or before November 23, 2012, may result in that defendant's dismissal for failure of service and/or prosecution. To avoid dismissal, on or before November 26, 2012, Plaintiff shall file proof of service or a filing providing sufficient explanation why service was not completed within the extended service period.
Further, the Status (Pretrial Scheduling) Conference scheduled for hearing on November 26, 2012, is continued to January 14, 2013, at 9:00 a.m. A further joint status report shall be filed no later than fourteen (14) days prior.
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