CIVIL MINUTES – GENERAL

Case No. CV 20-6635-ODW (KS) Date: November 9, 2020 Title James Edward Baertschiger v. Timothy C. Lopez

Present: The Honorable: Karen L. Stevenson, United States Magistrate Judge

Gay Roberson N/A Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: SERVICE BY U.S MARSHAL

On July 24, 2020, Plaintiff a California resident proceeding in forma pauperis, filed a Complaint pursuant to

. (Dkt. No. 1.) On July 30, 2020, the Court issued its initial scheduling order (“Scheduling Order”), which directed Plaintiff to promptly proceed with service of the summons and complaint on all named defendants pursuant to Rule 4 of the Federal Rules of Civil Procedure and file proof of service within 90 days, i.e., no later than October 28, 2020. (Dkt. No. 8.) On November 3, 2020, Plaintiff filed a Motion for Order Directing Service of Process by U.S. Marshal (the “Motion”), which consists of a single sentence: “Comes now James Edward Baertschiger, plaintiff proceeding pro se and in forma pauperis, and he hereby request the Court to order service of process (summons and complaint) by the U.S. Marshal pursuant to Rule 4(c)(3), Federal Rules of Civil procedure. (Dkt. No. 10) (errors in original).

Rule 4(c)(3) authorizes federal courts to order that service of process be made by a U.S. Marshal or a deputy marshal upon request by a plaintiff. Such orders are mandatory when, inter alia, the plaintiff has been authorized to proceed in forma pauperis under

. However, “the commentary on Rule 4 contained in the Congressional Record strongly implies that even persons proceeding in forma pauperis under

should first attempt service by the inexpensive mail method provided in . . . Rule 4(d).”1 4A FED. PRAC. & PROC. CIV. § 1090 & n.3 (4th ed.) (citing 128 Congressional Record H9848, 985 n.21,

, 121 n. 21).

1 Under Rule 4(d), “[a]n individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons [and t]he plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons.” CIVIL MINUTES – GENERAL

Case No. CV 20-6635-ODW (KS) Date: November 9, 2020 Title James Edward Baertschiger v. Timothy C. Lopez

A Rule 4(c)(3) application “should set forth whatever steps to serve process already have been taken.” 4A FED. PRAC. & PROC. CIV. § 1090 (4th ed.). In addition, the Rule 4(c)(3) application “must provide a factual basis for why a court order is necessary to accomplish service.” Id.; see also Hollywood v. Carrows California Family Restaurants, No. CV 18-2098-JGB (GJS),

, at *1 (C.D. Cal. Apr. 26, 2018) (quoting Prosperous v. Todd, No. 8:17-cv- 996-T,

, at *1 (M.D. Fla. May 25, 2017)).

The Motion here is cursory and provides no indication whether Plaintiff has attempted to effect service on Defendants without the aid of the U.S. Marshal and no explanation why Plaintiff requires the assistance of a U.S. Marshal. For this reason, IT IS ORDERED that, no later than November 23, 2020, Plaintiff shall SHOW CAUSE why he: (1) has been unable to effect service through Rule 4(d) and any other means; and (2) requires the assistance of the U.S. Marshal.

Additionally, in the interests of justice, IT IS ORDERED that Plaintiff’s Rule 4(m) deadline is extended by 30 days to November 27, 2020, to permit Plaintiff to respond to this Order to Show Cause and the Court to consider his response.

IT IS SO ORDERED. : Initials of Preparer gr

Fed. R. Civ. P. 4