Waddell v. Meyer ( 2019 )

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 WAYNE D. WADDELL, Case No. 1:19-cv-00789-LJO-SKO 14 Plaintiff, ORDER CONTINUING SCHEDULING 15 v. CONFERENCE 16 ORDER DIRECTING PLAINTIFF TO CONRAD V. MEYER, Acting Director, Army RE-SERVE DEFENDANT 17 Board for Correction of Military Records, 18 Defendant. 19 _____________________________________/ 20 Plaintiff filed this case against Defendant on June 6, 2019. (Doc. 2.) The complaint is filed 21 under 10 U.S.C. § 1552 requesting that the Secretary of the Army correct Plaintiff’s military 22 records. (See id. at 4.) The complaint alleges that Plaintiff is entitled to an award of the Army Air 23 Medal and requests that Defendant issue him the award. (See id. at 5.) 24 The case is set for a scheduling conference on December 12, 2019. (Doc. 7.) Defendant has 25 not yet appeared in the case. (See Docket.) On October 25, 2019, Plaintiff filed proof of service 26 on Defendant. (Doc. 12.) The proof of service indicates that on September 26, 2019, service was 27 28 attempted on “Conrad V. Meyer, Department of Army, Army Board for Correction of Military 1 2 because the address was incorrect. (Doc. 12.) In the “Remarks” section, the proof of service lists 3 “Jacqueline L. Emanuel, Colonel, US Army, Chief, Litigation Division,” and gives a date of 4 October 2, 2019. (Id.) However, the address at which service was effected is not listed, there is no 5 indication that the United States Attorney’s Office for the Eastern District of California or the 6 Attorney General of the United States were served by registered or certified mail, and there is no 7 indication that Defendant was served by registered or certified mail, as required by Rule 4. See 8 Fed. R. Civ. P. 4(i). 9 10 Thus, the Court will continue the scheduling conference as Defendant has not yet appeared 11 in the case, and direct Plaintiff to re-serve Defendant in accordance with Rule 4.1 12 Accordingly, IT IS ORDERED: 13 1. The scheduling conference currently set for December 12, 2019, is CONTINUED to 14 March 31, 2020, at 9:45 a.m. in Courtroom 7 (SKO) before Magistrate Judge Sheila K. Oberto. 15 2. Plaintiff SHALL re-serve Defendant in accordance with Rule 4 of the Federal Rules 16 of Civil Procedure and file proof of service by no later than February 3, 2020. 17 18 IT IS SO ORDERED. 19 Sheila K. Oberto Dated: December 5, 2019 /s/ . 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 1 Based on the nature of the allegations in the complaint, it appears Plaintiff is suing Defendant solely in his official capacity. However, to the extent Plaintiff is also suing Defendant in his individual capacity, he must also serve 28 Defendant personally under Rule 4(e). See Fed. R. Civ. P. 4(e), (i)(3); Hutchison v. United States, 677 F.2d 1322, 1328