Waddell v. Meyer

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 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 Board for Correction of Military Records, Defendant.

19 _____________________________________/ 20 Plaintiff filed this case against Defendant on June 6, 2019. (Doc. 2.) The complaint is filed under 10 U.S.C. § 1552 requesting that the Secretary of the Army correct Plaintiff’s military records. (See id. at 4.) The complaint alleges that Plaintiff is entitled to an award of the Army Air Medal and requests that Defendant issue him the award. (See id. at 5.)

The case is set for a scheduling conference on December 12, 2019. (Doc. 7.) Defendant has not yet appeared in the case. (See Docket.) On October 25, 2019, Plaintiff filed proof of service on Defendant. (Doc. 12.) The proof of service indicates that on September 26, 2019, service was attempted on “Conrad V. Meyer, Department of Army, Army Board for Correction of Military because the address was incorrect. (Doc. 12.) In the “Remarks” section, the proof of service lists “Jacqueline L. Emanuel, Colonel, US Army, Chief, Litigation Division,” and gives a date of October 2, 2019. (Id.) However, the address at which service was effected is not listed, there is no indication that the United States Attorney’s Office for the Eastern District of California or the Attorney General of the United States were served by registered or certified mail, and there is no indication that Defendant was served by registered or certified mail, as required by Rule 4. See Fed. R. Civ. P. 4(i).

10 Thus, the Court will continue the scheduling conference as Defendant has not yet appeared in the case, and direct Plaintiff to re-serve Defendant in accordance with Rule 4.1 12 Accordingly, IT IS ORDERED: 1. The scheduling conference currently set for December 12, 2019, is CONTINUED to March 31, 2020, at 9:45 a.m. in Courtroom 7 (SKO) before Magistrate Judge Sheila K. Oberto.

2. Plaintiff SHALL re-serve Defendant in accordance with Rule 4 of the Federal Rules of Civil Procedure and file proof of service by no later than February 3, 2020.

IT IS SO ORDERED.

Sheila K. Oberto Dated: December 5, 2019 /s/ .

UNITED STATES MAGISTRATE JUDGE 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 Defendant personally under Rule 4(e). See Fed. R. Civ. P. 4(e), (i)(3); Hutchison v. United States, 677 F.2d 1322, 1328