United States District Court, E.D. Washington
BRADFORD P. GOODMAN and PETER W. GOODMAN, Plaintiffs,
HEAT AND FROST INSULATORS AND ALLIED WORKERS LOCAL 82, et al., Defendants.
ORDER DISMISSING COMPLAINT
O. RICE Chief United States District Judge.
THE COURT is Plaintiffs' Response to Third Order to Show
Cause. ECF No. 29. This matter was submitted for
consideration without oral argument. The Court has reviewed
the record and files herein, and is fully informed. For the
reasons discussed below, Plaintiffs' Complaint (ECF No.
1) is DISMISSED.
January 6, 2017, Plaintiffs' filed this Complaint, but
failed to show that Defendants were served with Summonses and
a copy of the Complaint. As a result, on June 12, 2017, the
Court issued an Order to Show Cause directing Plaintiffs to
demonstrate on or before June 26, 2017, why this matter
should not be dismissed for failure to properly serve
Defendants. ECF No. 9; see also Fed. R. Civ. P.
did not respond to the Order to Show Cause nor file proof of
service showing Defendants had been properly served with
Summonses and the Complaint. Thus, on July 6, 2017, the Court
dismissed this action without prejudice. ECF No. 10.
then moved the Court to vacate the dismissal order,
explaining that they did not timely receive their mail.
See ECF Nos. 11-12. Although Plaintiffs' filing
(see ECF No. 11) titled “Concerning Documents
9 & 10 from The Court Order to Show Cause Order of
Dismissal Without Prejudice, ” purported to respond to
the Court's Order to Show Cause (see ECF No. 9),
Plaintiffs did not show proper service nor did they show good
cause for additional time to do so.
the Court liberally construed that filing and Plaintiffs'
“Summary version of Argument to Reconsider Order to
Dismiss Without Prejudice” as Federal Rule of Civil
Procedure 60(b) Motions to Reconsider and Vacate the Order of
Dismissal. ECF Nos. 11-12. On August 4, 2017, the Court
granted Plaintiffs' construed Fed.R.Civ.P. 60(b) Motions
to Reconsider and Vacate Order of Dismissal and re-opened the
case. ECF No. 14. The Court extended the time for Plaintiffs
to respond to the Court's Order to Show Cause (ECF No. 9)
why Plaintiffs have not served Defendants with the Summonses
and Complaint pursuant to Fed.R.Civ.P. 4(m). Plaintiffs were
ordered to file their response by September 5, 2017. ECF No.
August 9, 2017, Plaintiffs filed a Notice of Appeal to the
Ninth Circuit Court of Appeals, depriving this Court of
jurisdiction to proceed. ECF No. 15. On September 7, 2017,
the Ninth Circuit dismissed the appeal by Order and Mandate.
ECF No. 26. That Order and Mandate returned jurisdiction back
to this Court.
November 27, 2017, the Court ordered Plaintiffs again to show
cause by December 29, 2017, why this matter should not be
dismissed for failure to properly serve Defendants. ECF No.
28. On December 6, 2017, Plaintiffs responded to the Third
Order to Show Cause. ECF No. 29. Plaintiffs contend that they
sent the Summonses to Defendants by mail with confirmed
delivery on October 25 and 26, 2017. Id. at 1.
Plaintiffs also assert that they emailed the Summonses on
October 26, 2017 to the three Defendants. Id.
Plaintiffs ask the Court what they have not done to fulfill
the Second Order to Show Cause. Id.
Federal Rule of Civil Procedure 4(d), a plaintiff may notify
a defendant that an action has commenced and request that the
defendant waive service of a summons. Fed.R.Civ.P. 4(d)(1).
If a defendant fails to sign and return the waiver within 30
days, the plaintiff must serve the defendant. Fed.R.Civ.P.
plaintiff may serve a defendant within the United States by
following state law procedures, delivering a copy to the
individual personally, or leaving a copy at the
individual's dwelling place with someone of suitable age
and discretion who resides there. Fed.R.Civ.P. 4(e); see
also Fed. R. Civ. P. 4(h) (for serving a corporation,
partnership, or association). Unless service is waived by the
defendant, a plaintiff must provide proof of service to the
court through an affidavit. Fed.R.Civ.P. 4(1)(1).
plaintiff is responsible for serving the summons and
complaint within 90 days after the complaint is filed.
Fed.R.Civ.P. 4(c)(1) and (m). If a plaintiff shows good cause
why he or she failed to serve the summons within 90 days,
then the court must extend the time for service. Id.
Plaintiffs have not shown good cause why they waited over 9
months to attempt to serve Defendants rather than the
required 90 days. To allow such a delay in service,
Plaintiffs must show good cause. This they have not done. Nor
have Plaintiffs actually served Defendants properly. If
Defendants fail to return a written waiver of service within
30 days, personal service must be performed. The Court
emphasizes that it is not sufficient merely to show that