The opinion
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. EDCV 21-175-JWH (KK) Date: September 3, 2021
Title: 1 2
Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
DONNISHA BROWN Not Reported
Deputy Clerk Court Reporter
Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):
None Present None Present
Proceedings: (In Chambers) Order to Show Cause Why Action Should Not Be Dismissed
for Failure to Prosecute and Comply with Court Orders
I.
BACKGROUND
On January 29, 2021, Plaintiff Kim A. (“Plaintiff”) filed a Complaint challenging the denial
of Plaintiff’s applications for Title II Disability Insurance Benefits and/or Title XVI Supplemental
Security Income by the Commissioner of the Social Security Administration (“Defendant”). ECF
Docket No. (“Dkt.”) 1.
On February 2, 2021, the Court issued a Case Management Order (“CMO”) instructing
Plaintiff to “promptly serve the summons and complaint on the Commissioner in the manner
required by Rule 4(i) of the Federal Rules of Civil Procedure and Title 20 of the Code of Federal
Regulations, section 423.1” and “electronically file a proof of service showing compliance with this
paragraph within thirty (30) days after the filing of the complaint.” Dkt. 9 at 1-2 (emphasis added).
Pursuant to Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure, to serve the United States, a
party must “deliver a copy of the summons and of the complaint to the United States attorney for
1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and Case Management of the Judicial
Conference of the United States.
2 Kilolo Kijakazi, Acting Commissioner of Social Security, is substituted as the Defendant
pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
the district where the action is brought—or to an assistant United States attorney or clerical
employee whom the United States attorney designates in a writing filed with the court clerk—” or
“send a copy of each by registered or certified mail to the civil-process clerk at the United States
attorney’s office[.]” FED. R. CIV. P. 4(i)(1)(A).
On February 3, 2021, Plaintiff filed a proof of service of the summons and Complaint
purporting to show service on Defendant was completed on February 3, 2021. Dkt. 10. The proof
of service showed service upon the “Civil Process Clerk at the Office of the US Attorney of the
Central District of CA” at the “Riverside Branch office.” Id. at 2.
II.
DISCUSSION
Under Federal Rule of Civil Procedure 41(b), the Court may dismiss an action with prejudice
for failure to prosecute or failure to comply with any court order. See FED. R. CIV. P. 41(b). Here,
Plaintiff improperly served the United States by mailing copies of the summons and Complaint to
the incorrect address for the Civil Process Clerk of the United States Attorney’s Office. The Civil
Process Clerk for the United States Attorney’s Office in the Central District of California is not in
Riverside, California, but in Los Angeles, California. See Service of Process on the United States
Attorney, UNITED STATES DEPARTMENT OF JUSTICE, https://www.justice.gov/usao-cdca (last
visited Sept. 3, 2021). Consequently, under Rule 41(b), the Court may properly dismiss the instant
action without prejudice for failure to prosecute and comply with a court order. See Bennett v.
Colvin, No. CV 12-10317-PA (PJW), 2013 WL 3233420, at *1 (C.D. Cal. June 26, 2013) (dismissing
pro se social security action under Rule 41(b) where plaintiff failed to file proof of service on
defendant despite court order). However, before dismissing this action, the Court will afford
Plaintiff an opportunity to explain Plaintiff’s failure to properly serve Defendant and file a proof of
service as directed by the CMO.
III.
ORDER
Accordingly, Plaintiff is ORDERED TO SHOW CAUSE, in writing, why this action
should not be dismissed for failure to prosecute and/or comply with court orders. Plaintiff shall
have up to and including September 10, 2021, to respond to this Order. Plaintiff is cautioned
that failure to timely file a response to this Order will be deemed by the Court consent to the
dismissal of this action without prejudice.
IT IS SO ORDERED.