Krause v. Chawla

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERNEST KRAUSE, et al., No. 2:23-cv-02307-DAD-SCR 12 Plaintiffs, 13 v. ORDER REQUIRING PLAINTIFFS TO SHOW CAUSE WHY THIS ACTION 14 MANJARI CHAWLA, et al., SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE 15 Defendants.

17 18 On August 2, 2024, the court issued an order granting several motions to dismiss and 19 terminating all named defendants in this action except for defendant William Maroni, who has not 20 appeared in this action and who, according to the docket, has not been served in accordance with 21 Rule 4 of the Federal Rules of Civil Procedure. (Doc. No. 94.) In that order, the court noted that 22 it would address by way of separate order plaintiffs’ failure to timely serve the summons and 23 operative complaint on defendant Maroni, who is now the sole remaining named defendant in this 24 action. (Id. at 2 n.1, 16.) 25 Pursuant to Rule 4, “[t]he plaintiff is responsible for having the summons and complaint 26 served within the time allowed by Rule 4(m).” Fed. R. Civ. P. 4(c). “If a defendant is not served 27 within 90 days after the complaint is filed, the court—on motion or on its own after notice to the 28 plaintiff—must dismiss the action without prejudice against that defendant or order that service 1 | be made within a specified time.” Fed. R. Civ. P. 4(m). Plaintiffs initially named defendant 2 | Maroni in their first amended complaint (“FAC”) filed on December 4, 2023, and thus plaintiffs 3 || were required to serve defendant Maroni with the summons and FAC by no later than March 4, 4 | 2024. (Doc. No. 36.) According to the docket in this action, which does not reflect the filing of 5 || any summons returned executed for defendant Maroni, plaintiffs have failed to serve defendant 6 | Maroni within the 90 days required by Rule 4(m). Accordingly, plaintiffs are hereby ordered 7 | to show cause in writing within thirty (30) days of this order why their claims against 8 | defendant Maroni in this action should not be dismissed due to their failure to timely serve 9 | defendant Maroni. 10 Plaintiffs may respond to this order to show cause by: (1) serving defendant Maroni in 11 | compliance with Rule 4 and filing a proof of service with the court; (2) filing a declaration 12 || showing good cause for their failure to serve defendant Maroni, see Fed. R. Civ. P. 4(m); or 13 | (3) filing a notice of voluntary dismissal of defendant Maroni from this action under Federal Rule 14 | of Civil Procedure 41. Plaintiffs are warned that failure to comply with this order may result in a 15 | dismissal of this case for failure to obey a court order and failure to prosecute. See Marowitz v. 16 | Williams, No. 1:16-cv-01892-DAD-BAM, 2022 WL 673761, at *5 (E.D. Cal. Mar. 7, 2022) 17 | (providing the plaintiff with 30 days to serve the defendants in compliance with Rule 4(m) or file 18 | anotice of voluntary dismissal and warning the plaintiff that failure to comply with that order 19 | might result in dismissal of the action). 20 IT IS SO ORDERED. *" | Dated: _ August 20, 2024 Dal A. 2, axel 22 DALE A. DROZD 33 UNITED STATES DISTRICT JUDGE

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