November 5, 2013
JAMES KENNETH BRIDGMAN, et al., Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
ORDER (1) WITHDRAWING FINDINGS AND RECOMMENDATIONS OF OCTOBER 24, 2013;
(2) THAT PLAINTIFFS' COMPLAINT BE SERVED ON DEFENDANT WITHIN 30 DAYS FROM THE
DATE OF THIS ORDER; (3) THAT PLAINTIFFS FILE AN EXECUTED PROOF OF SERVICE WITHIN
45 DAYS FROM THE DATE OF THIS ORDER; (4) RESETTING THE SCHEDULING CONFERENCE FOR
JANUARY 16, 2014; (5) THAT A COPY OF THIS ORDER BE SERVED ON DEFENDANT WITH A
COPY OF THE SUMMONS AND THE COMPLAINT.
SHEILA K. OBERTO, Magistrate Judge.
Plaintiffs James Kenneth Bridgman, Janie Bridgman, and minor Sean Jennings (collectively "Plaintiffs") filed a complaint against the United States on May 21, 2013, alleging a claim under the Federal Tort Claims Act. The case was set for an initial scheduling conference on September 24, 2013. (Doc. 6.)
Plaintiffs failed to file a proof of service, however, and there was no indication on the docket that the United States has been served with the complaint. Thus, on September 19, 2013, the Court continued the September 24, 2013, scheduling conference to October 29, 2013, and ordered Plaintiffs, no later than October 3, 2013, to either file a proof of service or a status report indicating whether Plaintiffs intended to prosecute their case. Fed.R.Civ.P. 4(m) (complaint must be served within 120 days of filing). Plaintiffs filed neither a proof of service nor a status report.
On October 8, 2013, the Court issued an order to show cause why the complaint should not be recommended for dismissal due to Plaintiffs' failure to serve the complaint and Plaintiffs' failure to comply with the order issued on September 19, 2013. (Doc. 9.) Plaintiffs failed to file any response to the order to show cause.
On October 24, 2013, the undersigned issued Findings and Recommendations ("F&Rs") that, due to Plaintiffs' failure to serve the complaint pursuant to Federal Rule of Civil Procedure 4(m), the case should be dismissed without prejudice. (Doc. 11.) On November 1, 2013, Plaintiffs filed objections to the F&Rs indicating that due to inadvertence, Plaintiffs' counsel had failed to serve the complaint and summons and failed to respond to various orders of the Court. (Doc. 12.) Plaintiffs requested that the Court grant an additional period of 30 days within which to serve the summons and the complaint, and that the Court reset the scheduling conference. (Doc. 12.)
Accordingly, IT IS HEREBY ORDERED that:
1. The October 24, 2013, Findings and Recommendation of dismissal be WITHDRAWN;
2. Plaintiffs shall have 30 days from the date of this order to serve the summons and the complaint upon the Defendant;
3. Plaintiffs shall file an executed proof of service within 45 days from the date of this order;
4. A scheduling conference is SET for January 16, 2014, at 9:30 a.m. in Courtroom 7 before Magistrate Judge Sheila K. Oberto;
5. The parties are DIRECTED to review the Court's standing order issued on May 21, 2013 (Doc. 6), regarding preparation for the scheduling conference and the filing of a joint scheduling report;
6. A copy of this order SHALL be served on Defendant with the summons and the complaint; and
7. If Plaintiffs fail to comply with this order, the Court may impose monetary sanctions on counsel or recommend dismissal with prejudice.
IT IS SO ORDERED.