United States District Court, C.D. California
January 22, 2015
NATHAN J. COLODNEY
JAY ORR; DOES 1 - 50 INCLUSIVE
Nathan J Colodney, Plaintiff, Pro se, Alexandria, VA.
HONORABLE VIRGINIA A.
PHILLIPS, UNITED STATES DISTRICT JUDGE.
CIVIL MINUTES -- GENERAL
PROCEEDINGS: ORDER TO SHOW CAUSE RE: FAILURE TO PROSECUTE (IN CHAMBERS)
On September 23, 2014, Plaintiff Nathan J. Colodney (" Colodney") filed this action against Defendant Jay Orr (" Orr"). To date, however, Colodney has not filed a proof of service indicating that Orr was served with the complaint, nor has he submitted evidence to show efforts made to give notice or given a reason notice should not be required. Pursuant to Federal Rule of Civil Procedure (" FRCP") 4(m), a plaintiff must serve summons and complaint on all named defendants within 120 days of filing. When a plaintiff fails to prosecute the case, the court on its own motion may dismiss the case under FRCP 41(b). See Tolbert v. Leighton, 623 F.2d 585, 586-87 (9th Cir. 1980). Colodney has failed to prosecute this action, and thus it is subject to dismissal.
Since the original complaint was filed, Colodney has amended his complaint twice. It is unclear whether those amendments were procedurally proper. In any event, the filing of an amended complaint does not reset the 120 day limit for service as to any originally named defendants. Bolden v. City of Topeka, Kansas, 441 F.3d 1129, 1148 (10th Cir. 2006) (" But the 120-day period provided by Rule 4(m) is not restarted by the filing of an amended complaint except as to those defendants newly added in the amended complaint."). No new defendants have been named in either of these amended pleadings.
Accordingly, the Court ORDERS Colodney to show cause, in writing, not later than February 6, 2015, why this action should not be dismissed without prejudice for failure to prosecute. Failure to file a response will result in dismissal of this action.
IT IS SO ORDERED.