The opinion of the court was delivered by: The Honorable David O. Carter, Judge
PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera N/A Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:
None Present None Present
PROCEEDINGS (IN CHAMBERS): ORDER TO SHOW CAUSE WHY COMPLAINT SHOULD NOT BE DISMISSED
On October 12, 2012, Plaintiff filed his Complaint (Dkt. 1) requesting review of his denial of Social Security disability benefits. On October 24, 2012, the case was assigned to this Court and referred to Magistrate Judge Sherri Pym (Dkt. 3). On October 25, Magistrate Judge Pym issued a Case Management Order (Dkt. 6) advising the Plaintiff that, pursuant to Federal Rule of Civil Procedure 4(i), service of the summons, the complaint, and a copy of the Case Management Order had to be accomplished on Defendant and proof of service filed with the Court by November 21, 2012. See Case Management Order.
On December 3, 2012, after Plaintiff failed to file the required proof of service, Magistrate Judge Pym issued an Order to Show Cause (Dkt. 7) why Plaintiff's Complaint should not be dismissed, and further ordered Plaintiff to respond on or before December 18, 2012. See December 3, 2012, Minute Order. Again, Plaintiff failed to respond, and on January 9, 2013, this Court ordered summary dismissal of Plaintiff's Complaint for failure to prosecute, Minute Order (Dkt. 8), and entered a Judgment dismissing the Complaint without prejudice (Dkt. 9).
On January 31, 2013, Plaintiff filed a Motion for Reconsideration (Dkt. 10) that offered two reasons for his failure to file proof of service and his failure to respond to an order of the Court. First, he explained that, as a pro se litigant, his unfamiliarity with the legal system led him to rely on Federal Rule of Civil Procedure 4(m)'s 120 day "Time Limit For Service" and believe that he had until approximately January 21, 2013, to serve Defendant. See Mot. at 4. Second, he stated that, at the time he filed his Complaint, Plaintiff was homeless and "used a general delivery address" that was "an unreliable method of receiving mail." Id. Consequently, he did not receive the Court's Order to Show Cause. Id.
On March 7, 2013, pursuant to Federal Rules of Civil Procedure 59(e) and 60(b) and Local Rule 7-18, for good cause shown and because Plaintiff's error constituted "mistake, inadvertence, surprise, or excusable neglect" under Rule 60(b)(1), the Court vacated its Order (Dkt. 8) and Judgment (Dkt. 9) dismissing Plaintiff's Complaint, and reinstated Plaintiff's Complaint. See Minute Order (Dkt. 14). Plaintiff was ordered to promptly serve the summons and complaint and a copy of both the Court's Minute Order and the Case Management Order (Dkt. 6) on Defendant in the manner required by Rule 4(i) of the Federal Rules of Civil Procedure and 20 C.F.R. § 423.1. Plaintiff was further ordered to file a proof of service showing compliance on or before April 8, 2013.
Plaintiff has yet to file any of the required documents. Accordingly, Plaintiff is ORDERED to show cause in writing by April 29, 2013, why this case should not be dismissed due to Plaintiff's failure to file proof of service in compliance with previous orders of the Court. Any response by Plaintiff should also include proof of service on Defendant. The Court warns Plaintiff that failure to respond to this Order to Show Cause may result in dismissal of the action for failure to prosecute.
The Clerk shall serve a copy of this minute order on counsel for all parties in this action.