The opinion of the court was delivered by: The Honorable Philip S. Gutierrez, United States District Judge
Present: The Honorable Philip S. Gutierrez, United States District Judge
Wendy Hernandez Not Reported
Deputy Clerk Court Reporter / Recorder Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Not Present Not Present Proceedings: (In Chambers): Order to Show Cause Why Defendants John
Fry, David Fry, and Randy Fry Should Not Be Dismissed Under Federal Rule of Civil Procedure 4(m)
The Court's Standing Order provides:
The Plaintiff(s) shall promptly serve the Complaint in accordance with Fed. R. Civ. P. 4 and file the proofs of service pursuant to Local Rules. Any Defendant(s) not timely served shall be dismissed from the action without prejudice. Any "DOE" or fictitiously-named Defendant(s) who is not identified and served within 120 days after the case is filed shall be dismissed pursuant to Fed. R. Civ. P. 4(m).
Standing Order ¶ 1. Here, although Plaintiff Michael Nathan's ("Plaintiff") Complaint named John Fry, David Fry, and Randy Fry as Defendants, there is no indication that these parties were timely served with the FAC. Further, Defendant Fry's Electronics, Inc., represented in its motion to dismiss Plaintiff's FAC that these Defendants were not served. Fry's Mot. 1:27-28.
The Complaint was filed on August 31, 2012, and the action was removed to this Court on October 10, 2012. See Dkt. # 1. Therefore, pursuant to Federal Rule of Civil Procedure 4(m), the 120-day limit for service expired on February 7, 2013. See Fed. R. Civ. P. 4(m); Schwarzer, Tashima, & Wagstaffe, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial § 5:305 (The Rutter Group 2011) (stating that the 120-day period for service typically runs from the date of removal). Because it appears that Plaintiff has not yet served John Fry, David Fry, and Randy Fry, Plaintiff is ordered to show cause by May 28, 2013 why these defendants should not be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). The Court will consider the filing of Proof of Service of Summons and Complaint as to John Fry, David Fry, and Randy Fry as an appropriate response to this Order to Show Cause ("OSC"). Failure to respond to this OSC by May 28, 2013will result in John Fry, David Fry, and Randy Fry being dismissed from this action.
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