The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER (1) DENYING DEFENDANT LISA TONG'S MOTION TO DISMISS COMPLAINT FILED ON JANUARY 5, 2012 WITHOUT PREJUDICE TO REFILING; AND (2) GRANTING PLAINTIFF LEAVE TO FILE FIRST AMENDED COMPLAINT AND TO SERVE DEFENDANT LISA TONG BY SEPTEMBER 10, 2012
On December 27, 2011, Plaintiff Herbert J. Namohala ("Plaintiff"), proceeding pro se, filed a Complaint asserting that various Defendants*fn1 violated his First and Fourteenth Amendment rights by engaging in a conspiracy to wrongfully accuse and ultimately charge Plaintiff with felony second degree theft. In a March 23, 2012 Order, the court dismissed Plaintiff's claims against the State of Hawaii, the CPS, and the DCCA, and limited Plaintiff's claims against DCCA employee Lisa Tong ("Tong") to a damages claim against her in her individual capacity and/or a claim seeking injunctive relief. Doc. No. 36.
Currently before the court is Tong's Motion to Dismiss, in which she argues, among other things,*fn2 that the claims against her should be dismissed because Plaintiff failed to serve her within 120 days as required by Federal Rule of Civil Procedure 4(m). Plaintiff filed an Opposition on August 6, 2012, and Tong filed a Reply on August 8, 2012. A hearing was held on August 27, 2012. Based on the following, the court DENIES Tong's Motion to Dismiss without prejudice, and GRANTS Plaintiff leave to file his March 29, 2012 proposed First Amended Complaint ("FAC") with the court by September 10, 2012 and then serve a copy of the filed FAC on Tong by October 8, 2012.
Tong's argument appears simple enough -- she argues that Plaintiff has not served her the Complaint such that the claims against her should be dismissed. Complicating this matter, however, is a somewhat odd procedural history which suggests that Plaintiff is confused regarding how to properly file and serve pleadings in this action. The court therefore first outlines the procedural history of this action to explain why Plaintiff has failed to properly serve Tong, and then addresses Tong's Rule 4(m) argument.
A. The Complaint Is the Operative Pleading, Which Plaintiff Has Failed to Serve on Tong
Plaintiff filed his Complaint on December 27, 2011, and never served it on Tong.
On March 29, 2012, Plaintiff filed a Motion to file a FAC, which attached as an exhibit his proposed FAC. Doc. No. 37. On May 16, 2012, Magistrate Judge Kevin S.C. Chang granted Plaintiff's Motion to file the proposed FAC, directing Plaintiff to file the proposed FAC within one week, i.e., May 23, 2012. Doc. No. 46. Despite these instructions for Plaintiff to file the proposed FAC by May 23, 2012 and Plaintiff's assertions at the August 27, 2012 hearing that he mailed his FAC to the court and all parties, the court never received his FAC for filing.*fn3
Plaintiff was notified of his failure to file his proposed FAC with the court when he sought an enlargement of time to serve the FAC upon Tong. In denying this Motion on June 1, 2012, Magistrate Judge Chang explained that Plaintiff had failed to file the proposed FAC with the court such that Plaintiff needed to serve the Complaint on Tong:
First, the Court already directed Plaintiff to file his First Amended Complaint by May 23, 2012. Doc. No. 46. Insofar as Plaintiff presented his proposed First Amended Complaint in connection with his motion to file his first amended rights complaint, there is no reason for a delay in filing the First Amended Complaint. Second, other than his representation that he has been attempting but is unable to find a process server to effect service on Defendant Tong, Plaintiff has not offered a compelling basis for an extension of time to serve Defendant Tong. Notably, Plaintiff has yet to provide the Court with proof that Defendant Tong was served with the original Complaint. Therefore, based on the current record, the Court cannot ascertain what service deadline applies to Defendant Tong. For these reasons, the Court DENIES the Motion.
Tong's June 8, 2012 Motion to Dismiss followed. In Opposition, Plaintiff served his proposed FAC (which he never filed with the court) on Tong on July 31, 2012, Doc. No. 53, and filed his Opposition on August 6, 2012. Doc. No. 56.
Given that Plaintiff served his proposed FAC on Tong, the court can only conclude that Plaintiff, who is proceeding pro se, still does not understand that he must actually file his proposed FAC with the court for it to become the operative pleading in this action. Only after Plaintiff files his proposed FAC with the court can he then serve such pleading on Tong. In other words, there is currently no FAC against Defendants. As a result, Plaintiff's service of the proposed FAC on Tong was insufficient -- Plaintiff needed to serve Tong a summons and a copy of the ...