UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES--GENERAL

Case No. EDCV 20-2348-SB (JPR) Date: August 30, 2021 Title: Billy Joe Spencer v. Karl Martinez ============================================================ DOCKET ENTRY: Order to Show Cause Why This Action Should Not Be Dismissed for Failure to Serve/Prosecute ===========================================================

PRESENT:

HON. JEAN P. ROSENBLUTH, U.S. MAGISTRATE JUDGE

Bea Martinez n/a Deputy Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:

None present None present

PROCEEDINGS: (IN CHAMBERS)

On April 7, 2021, the Court ordered the U.S. Marshals Service to serve the summons and First Amended Complaint on Defendant Karl Martinez. On August 12, 2021, the Marshal filed a process receipt and return indicating that Defendant could not be served because he no longer works at the California Institution for Men in Chino and the Marshal was unable to locate him. It does not appear that Plaintiff has provided the Marshal with any more information to help effect service. Under Federal Rule of Civil Procedure 4(m), an unserved complaint may be dismissed without prejudice unless the plaintiff shows good cause for the failure to serve. If he does, the Court may extend the time for service for an “appropriate period.” Id. Here, the FAC has not been timely served, and Plaintiff has not provided Defendant’s proper address to effect service, as is his responsibility. Accordingly, he is ORDERED TO SHOW CAUSE no later than 14 days from the date of this order why his lawsuit should not be dismissed for failure to serve, failure to prosecute, or both. He may satisfy this order by taking one of three actions: (1) complete a new USM-285 form, a blank copy of which is attached to this order, providing the Marshal with the necessary information to serve Defendant Martinez at his current

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES--GENERAL

Case No. EDV 20-2348-SB (JPR) August 30, 2021 Billy Joe Spencer v. Karl Martinez Page 2 ----------------------------------------------------------------- address and filing a notice of submission at the same time; (2) request to voluntarily dismiss this action without prejudice; or (3) request leave to conduct limited discovery to find out additional information concerning Defendant’s address. But he is cautioned that Federal Rule of Civil Procedure 45 provides the only mechanism for conducting discovery on nonparties. And a motion for issuance of a Rule 45 subpoena must be supported by a specific showing of the documents sought and that the desired information is available only through the identified third party. See Davis v. Ramen, No. 1:06-CV-01216-AWI-SKO PC., 2010 WL 1948560, at *1 (E.D. Cal. May 11, 2010). Because Plaintiff does not appear to be incarcerated, he may first wish to take other steps to try to ascertain Defendant’s address; it is possible that the litigation coordinator at CIM, whose phone number is on the document attached to the process receipt, may have more information or otherwise be able to help. Failure to timely comply with this order may result in this lawsuit being dismissed. The Clerk is directed to serve with this order a blank CV-09 form for voluntary dismissal, a blank USM-285 form to effect service, and a blank Notice of Submission form for this case.