Lyu v. Mayorkas ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN FRANCISCO DIVISION 7 8 GUANGFU LYU, Case No. 24-cv-00533-PHK 9 Plaintiff, 10 v. ORDER TO SHOW CAUSE 11 ALEJANDRO MAYORKAS, et al., 12 Defendants. 13 14 15 Now before the Court is the issue of whether or not Plaintiff has properly effected service 16 on the named Defendants in this case. Plaintiff, proceeding pro se, commenced this lawsuit on 17 January 29, 2024, naming Alejandro Mayorkas and Merrick Garland as Defendants. [Dkt. 1]. 18 Federal Rule of Civil Procedure 4(m) sets forth the following requirements for service of 19 plaintiff’s complaint on the named defendants: 20 If a defendant is not served within 90 days after the complaint is filed, the court— on motion or on its own after notice to the plaintiff—must dismiss the action 21 without prejudice against that defendant or order that service be made within a 22 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 23 24 More than ninety days have passed since Plaintiff’s Complaint was filed, and the docket 25 does not reflect that the complaint was served as to either Defendant. Nor has Plaintiff requested 26 any extension of time to serve the complaint on Defendants. Plaintiff’s failure to properly serve 27 the complaint on Defendants within the time limit prescribed by Rule 4(m) is grounds for 1 As a pro se litigant, Plaintiff is responsible for reviewing and complying with the pertinent 2 Federal Rules of Civil Procedure. Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 3 1997) (“Pro se litigants must follow the same rules of procedure that govern other litigants.”); see 4 also Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam) (affirming dismissal of pro 5 se litigant’s case for failure to comply with procedural rules). 6 In light of the foregoing, the Court ORDERS Plaintiff to show cause (i.e., explain to the 7 Court) why this case should not be dismissed without prejudice, pursuant to Federal Rule of Civil 8 Procedure 4(m), for failure to properly serve the complaint on the Defendants within the deadline 9 for doing so. Therefore, by this Order, the Court INSTRUCTS Plaintiff either to file with the 10 Court a written explanation by June 24, 2024 which sets forth: 11 (1) why service of the complaint on Defendants has not yet been completed, 12 (2) whether Plaintiff is requesting an extension of time to complete service of the 13 complaint, and 14 (3) whether there are legally sufficient reasons to justify both the delay in service and the 15 request (if any) for an extension of the deadline for service (and what those reasons are). 16 In the alternative, if the Plaintiff has already served the complaint on the Defendants, the 17 Court INSTRUCTS Plaintiff to file proofs of service promptly with the Court, and in any event, 18 no later than June 24, 2024. 19 Accordingly, IT IS ORDERED THAT: 20 1. On or before June 24, 2024, Plaintiff shall file a written response with the Court 21 which shows cause as to why this Court should not dismiss this case due to Plaintiff’s 22 failure to complete service on Defendants within ninety days of filing the case as 23 required by Federal Rule of Civil Procedure 4(m). Instead of a response to show 24 cause, Plaintiff may simply file proofs of service regarding Defendants (if such service 25 has been completed) on or before June 24, 2024. 26 2. The Court hereby provides Plaintiff NOTICE that failure to comply with this Order to 27 Show Cause, as directed herein, will result in the Court’s issuance of a ] Civil Procedure 4(m) due to failure to complete service. 2 3. The Court ADVISES Plaintiff that there are several resources for pro se litigants with 3 regard to proceedings in this Court, including resources on the Court’s website. See, 4 e.g., https://www.cand.uscourts.gov/wp- 5 content/uploads/2020/02/Pro_Se_ Handbook 2020ed_links 12-2021 MBB.pdf. 6 7 || ITIS SO ORDERED. 8 || Dated: May 22, 2024 9 PETER H.KANG_. 10 United States Magistrate Judge 1] as 12 13 «14 16 17 Oo Z 18 19 20 21 22 23 24 25 26 27 28