UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 15, 2013
144TH FIGHTER WING, CALIFORNIA AIR NATIONAL GUARD, CALIFORNIA NATIONAL GUARD, DEFENSE FINANCE AND ACCOUNTING SERVICES (DFAS), HARRY M. WYATT III, DAVID S. BALDWIN, SAMI D. SAID, MARK GROVES, TERESA MCKAY, AND DOES ONE THROUGH TEN, DEFENDANTS.
In their Joint Status Report, the parties indicated that none of the individual defendants--Wyatt, Baldwin, Said, Groves, and McKay--in the above-cited case have been served. (Docket No. 28.) Federal Rule of Civil Procedure 4(m) provides:
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.
The 120-day limit imposed by Rule 4(m) expires 120 days after the first complaint in which the defendant is named. Rudolph v. UT Starcom, Inc., Civ. No. 07-04578 SI, 2009 WL 248370, at *2 (N.D. Cal. Feb. 2, 2009) (citing Bolden v. City of Topeka, 441 F.3d 1129, 1148 (10th Cir. 2006)); City of Merced v. Fields, 997 F. Supp. 1326, 1337-39 (E.D. Cal. 1998) (Coyle, J.). The individual defendants were named for the first time in this action in the First Amended Complaint ("FAC") filed on January 29, 2013. (Docket No. 21.) Plaintiffs must therefore complete service of process on those parties within 120 days after the FAC was filed.
The parties stipulate that the United States waives process service of the summons and complaint under Federal Rule of Civil Procedure 4(i) upon the United States Attorney, the United States Attorney General, and DFAS. The parties further stipulate that the time for response to the FAC by the United States, DFAS, and the first two individual defendants to be served with the summons and complaint under Rule 4, be extended until sixty days after the date of service of the summons and complaint upon the third individual defendant to be served with process.
Finally, because the parties have requested that initial disclosures, discovery scheduling, and pretrial motion scheduling be deferred until all individual defendants are served, the scheduling conference in this matter is hereby continued until July 8, 2013. Pursuant to Local Rule 240, the parties shall submit to the court a Joint Status Report fourteen (14) calendar days prior to the hearing date. IT IS SO ORDERED.
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