Thomas Richard Di Bartelo v. Alex Scott et al, No. 5:2012cv00259 - Document 55 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Judge Dale S. Fischer: DISMISSING DEFENDANTS SHARON BARKSDALE, EDMUND G. BROWN, AND PEGGY JIMENEZ FOR FAILURE TO SERVE. (See document for details.) (rla)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 EASTERN DIVISION 9 10 THOMAS RICHARD DIBARTELO, 11 Plaintiff, 12 v. 13 14 15 ALEX SCOTT, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-0259-DSF (MLG) MEMORANDUM OPINION AND ORDER DISMISSING DEFENDANTS SHARON BARKSDALE, EDMUND G. BROWN, AND PEGGY JIMENEZ FOR FAILURE TO SERVE 16 17 Plaintiff filed this pro se civil rights action on February 21, 18 2012. He paid the full filing fee. Five of the Defendants waived 19 service. Fed.R.Civ.P. 4(d). However, service was not waived by 20 Defendants Sharon Barksdale, Edmund G. Brown, and Peggy Jimenez. 21 Because it appears from the record that the latter three defendants 22 have not waived service and have not been properly served, they will 23 be dismissed from this action without prejudice. 24 Rule 4(m) of the Federal Rules of Civil Procedure provides that 25 if service is not made within 120 days after the filing of the 26 complaint, and the plaintiff cannot show good cause why service was 27 not made within that period, the action shall be dismissed without 28 prejudice upon the court s own initiative with notice to the 1 plaintiff. Fed.R.Civ.P. 4(m); see Boudette v. Barnette, 923 F.2d 754, 2 757 (9th Cir. 1991)(affirming dismissal of complaint for failure to 3 timely serve the summons and complaint); Townsel v. County of Contra 4 Costa, 820 F.2d 319, 320 (9th Cir. 1987)(same). The 120-day period 5 may be extended by the Court upon a showing of good cause. See 6 Fed.R.Civ.P. 4(m). The 120 days in which to effect service in this 7 case expired on June 20, 2012. 8 On August 8, 2012, Magistrate Judge Marc L. Goldman ordered 9 Plaintiff to show cause in writing, on or before August 28, 2012, why 10 the action should not be dismissed against the unserved defendants 11 for failure to effect service. Plaintiff filed a nominal response on 12 August 16, 2012, in which he quotes from the Bible, the Magna Carta, 13 the Articles of Confederation, the Constitution, and the Declaration 14 of Independence. What he has not done is shown that the three 15 Defendants have been properly served or demonstrated good cause for 16 failing to effect service within 120 days of the filing of the 17 complaint. 18 The record shows that Plaintiff claims to have sent copies of 19 the summons and complaint to Defendants Barksdale, Brown, and Jimenez 20 by certified mail. However, that is not an effective means of service 21 under either the Federal Rules of Civil Procedure or the California 22 Code of Civil Procedure. Fed.R.Civ.P. 4(e)(2) requires that an 23 individual be served by either personally delivering the summons and 24 complaint; leaving the documents with someone of suitable age and 25 discretion at the defendant s usual place of abode; or delivering the 26 documents to an agent authorized to receive service of process. None 27 of these means of service were utilized here. 28 // 2 1 Alternatively, Fed.R.Civ.P. 4(e)(1) permits service by following 2 state law for service in an action brought in courts of general 3 jurisdiction in the state where the district court sits. Cal. Code 4 Civ. P. § 415.30 provides a means for service of process by mail, but 5 that provision requires that the plaintiff include a specific notice, 6 an acknowledgment of receipt of the summons, and a prepaid return 7 envelope in the mailing. In addition, section 415.30 requires the 8 recipient to return a written acknowledgment of receipt of the 9 summons in order for service to be completed. See e.g., Vela v. 10 Murphy, 362 Fed.Appx. 624 (9th Cir. 2010); Barlow v. Ground, 39 F.3d 11 231, 12 Cal.App.3d 911 (1981). No acknowledgment of service has been filed 13 and 14 requirements of this section. 234 (9th thus, Cir. Plaintiff 1994); has Tandy failed Corp. to v. show Superior that he Court, has met 117 the 15 Plaintiff has therefore failed to properly effect service upon 16 Defendants Barksdale, Brown, and Jimenez, and although given notice 17 and an opportunity to respond, has not shown good cause for this 18 failure. See Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 511 12 19 (9th Cir. 2001) (setting forth standard of review and discussing 20 factors 21 requested leave to extend the time for effecting service. The failure 22 to effect service warrants dismissal of this action as to the 23 unserved defendants by reason of Rule 4(m). 24 // 25 // 26 // 27 // 28 // to establish good cause). 3 Moreover, Plaintiff has not 1 Accordingly, it is ORDERED that this action be dismissed as to 2 Defendants 3 failure to effect service. Barksdale, Brown, and Jimenez without prejudice for 4 5 Dated: 8/27/12 6 7 Dale S. Fischer United States District Judge 8 9 10 Presented By: 11 12 13 ______________________________ Marc L. Goldman United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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