Jon Christ, plaintiff, is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Settlement negotiations have thus far been unsuccessful, and the parties have filed pretrial statements. In reviewing the case in preparation for trial, the court has discovered that two named defendants have not responded to the complaint. The court cannot proceed further without resolving the status of these defendants.
Plaintiff originally filed this action in state court, and defendants
elected to remove the case here. Dckt. No. 1-1. An individual referred
to as Weiglein is named in the body of the complaint. Paragraphs 4
identifies him as a "correctional sergeant" employed by the CDCR.
Paragraph 7 states that Weiglein denying plaintiff's appeal and
"covered up actions of defendant Lopez, his fellow sergeant." Id. at
CM/ECF page 8 of 17. However, Weiglein is not named in
the caption of the complaint nor in the summons. Weiglein has never
answered or otherwise responded to the complaint. It is not clear
whether defendant Weiglein has ever been served but his absence from
the caption or the summons suggest that he has not. It appears that,
even if served, defendant Weiglein did not join in removing the case
to federal court. The notice of removal refers generally to
"defendants," but is signed by counsel representing only defendants
Blackwell, Broyles, Lopez, Voight, Roszko, and Zuniga.*fn1
Dckt. No. 1 at 2.
If plaintiff did not complete service of the complaint on defendant Weiglein prior to the removal of the case to federal court, he had 120 days to accomplish that service after removal by requesting that the court order the U.S. Marshal to effect service on defendant Weiglein.*fn2 28 U.S.C. § 1448 (providing that, where service on a defendant has not been completed or perfected prior to removal, the plaintiff may complete that service of new process issued in the same manner as in cases filed originally in the district court); Fed. R. Civ. P. 4(c)(3) (providing that, at the plaintiff's request, the court may order service by the U.S. Marshal) & 4(m) (providing that the court must dismiss a defendant not served within 120 days of the filing of the complaint unless plaintiff shows good cause for the failure to serve). Plaintiff did not do so. Accordingly, the court orders plaintiff to show cause within 30 days of the date of this order why defendant Weiglein should not be dismissed from this action under Federal Rule of Civil Procedure 4(m).
Defendant Roszko joined the notice of removal. See Dckt. No. 1 at 2 (notice of removal signed by counsel for defendants Blackwell, Broyles, Lopez, Voight, Roszko, and Zuniga). On August 31, 2010, the court ordered all defendants to file a response to the complaint within 30 days. Dckt. No. 15. On September 29, 2010, the same counsel filed an answer on behalf of defendants Blackwell, Broyles, Lopez, Voight, and Zuniga, but defendant Roszko was no longer listed. Dckt. No. 17. The docket does not reveal any explanation for defendant Roszko's sudden absence. He has, however, reappeared as a potential witness in defendants' pretrial statement. Dckt. No. 63 at 9.
On October 5, 2010, plaintiff requested entry of default against all defendants. Plaintiff argued that the answer was due on September 28, 2010 and, because plaintiff had not yet received the answer on the date he drafted his motion (September 29, 2010), entry of default was appropriate as to all defendants. Dckt. No. 18. Plaintiff did not argue specifically that defendant Roszko had not responded to the complaint. The court, having received the timely answer of defendants Blackwell, Broyles, Lopez, Voight, and Zuniga on September 29, 2010, did not respond to plaintiff's request.
In sum, defendant Roszko joined in removing the case to federal court and was ordered by this court to file a response to the complaint, but he has not done so. Accordingly, defendants are ordered to show cause within 30 days of the date of this order why the court should not reconsider plaintiff's request for entry of default as to defendant Roszko.*fn3
III. Settlement Negotiations
At the conclusion of the settlement conference, the parties indicated their intent to continue negotiations out-of-court. The parties shall inform the court whether such communications have occurred and whether an additional settlement conference would be fruitful.
For the reasons stated above, it is hereby ORDERED that:
1. Within 30 days of the date of this order, plaintiff shall show cause why defendant Weiglein should not be dismissed under Federal Rule of Civil Procedure 4(m) due to plaintiff's failure to serve him;
2. Within 30 days of the date of this order, defendants shall show cause why the court should not reconsider plaintiff's request for entry ...