Johnson v. Hilpert et al
Filing
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ORDER signed by Judge Kimberly J. Mueller on 11/23/2011 DISMISSING Defendants John W. Blawat, Rosie M. Blawat and Susan C. Sozzi, without prejudice. John W. Blawat, Rosie M. Blawat and Susan C. Sozzi TERMINATED. (Michel, G)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SCOTT N. JOHNSON,
Plaintiff,
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Civ. No. S-11-1396 KJM DAD
vs.
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DALE HILPERT, et al.,
ORDER
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Defendants.
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On May 23, 2011, plaintiff filed a complaint naming as defendants John W.
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Blawat, Rosie M. Blawat, Dale Hilpert, and Susan Sozzi. On June 15, 2011, the summonses as
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to John Blawat, Rosie Blawat and Susan Sozzi were returned as unexecuted.
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On October 5, 2011, the court issued an order to show cause asking plaintiff to
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explain why the action should not be dismissed for his failure to effect timely service. Plaintiff
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explained that the single defendant who responded, Dale Hilpert, was not the correct defendant
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and that he had filed an amended complaint, naming the appropriate party. He did not address
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his failure to serve defendants Sozzi and John and Rosie Blawat.
The amended complaint, filed October 10, 2011, omits defendant Hilpert and
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adds defendant Payless Shoe Source, Inc.; it also names defendants John and Rosie Blawat and
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Sozzi.
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Under Rule 4(m) of the Federal Rules of Civil Procedure, a court may dismiss an
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action against any defendant who has not been served with 120 days after the complaint was
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filed. Although a court has broad discretion under the rule, a plaintiff may avoid dismissal if he
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shows good cause for the delay; in this context, good cause means, at a minimum, excusable
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neglect. In re Sheehan, 253 F.3d 507, 512-13 (9th Cir. 2001). In this case, plaintiff has made no
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showing of excusable neglect for his failure timely to serve the three individual defendants still
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named in the first amended complaint.
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IT IS THEREFORE ORDERED that this action is dismissed without prejudice as
to defendants John Blawat, Rosie Blawat and Susan Sozzi.
DATED: November 23, 2011.
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UNITED STATES DISTRICT JUDGE
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