Opinion
No. C 01-4987 MMC
October 15, 2002
ORDER DISMISSING COMPLAINT
By order filed August 8, 2002, the Court dismissed defendants City of Oaklanc Oakland Police Department from the instant action. In that same order, the Court no that plaintiff had not filed the requisite proof of service with respect to the remaining defendants in the action. See Fed.R.Civ.P. 4(m). Plaintiff was accordingly ordered to show cause why his complaint should not be dismissed as against such remaining defendants. Plaintiff was further advised that failure to show good cause within 30 the order's issuance would result in dismissal without prejudice as to any defendant as to whom proof of service had not been filed.
On September 5, 2002 plaintiff filed a purported proof of service wherein he indicates that he mailed a copy of the summons and complaint, by either prepaid or certified mail, to each of the defendants in the action. Service by mail, however only if a signed acknowledgment is returned" to the sender by the defendant w of the mailing of the summons and complaint. See Barlow v. Ground, 39 F.3d 231, 23 (9th Cir. 1994); Cal. Code Civ. P. § 415.30; see also Tandy Corp. v. Superior Court, 117 Cal.App.3d 911, 913 (1981) (holding certified mail postal service return receipts do not "suffice as a substitute for an executed acknowledgment of receipt of summons.") As plaintiff has made no showing that such signed acknowledgment was returned by any of the defendants, service has not been accomplished. See id.
In light of plaintiffs failure to comply with the Court's order to show cause, plaintiff's complaint is hereby DISMISSED without prejudice as to all of the remaining defendants pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
In related case number C 02-0574, plaintiff filed a motion to remand, noticed hearing October 18, 2002. No motion to remand was filed in the instant action. On October 1, 2002, plaintiff filed a "Notice of Mailing" in the instant action, suggesting plaintiff is under the mistaken impression that his motion to remand was filed in both cases. if such motion had been filed herein, however, it would be subject to dismissal for the same reasons set forth in the Court's order filed concurrently herewith in the related case.
The Clerk shall close the file.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issue have been tried or heard and a decision has been rendered.