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Baker v. Gaspar

United States District Court, D. Hawaii

August 28, 2019

VERNON JOHN BAKER, Plaintiff,
v.
EVELYN GASPAR, RN; LISA OGATA, RN, Defendants.

          DISMISSAL ORDER

          Jill A. Otake United States District Judge.

         On March 24, 2016, Plaintiff Vernon Baker filed suit against Evelyn Gaspar, Lisa Ogata, Louis Semeatu, Courtney Mori, Dr. Karl Ayer, and Dr. Francis Hamada.[1]

         On August 8, 2017, Magistrate Judge Puglisi issued an order denying Plaintiff's request for entry of default against Defendants Hamada, Gaspar, Ogata, and Ayer. ECF No. 70 at 4. Judge Puglisi ordered Plaintiffs to provide the addresses of Defendants Gaspar and Ogata so that they could be served. Id. On February 20, 2018, Plaintiffs filed a motion to compel discovery of the last known addresses of Defendants Gaspar and Ogata, ECF No. 115, which was denied on February 23, 2018, because the Department of Public Safety had already informed the Court that it did not possess such information, ECF No. 116 at 3.

         On February 25, 2019, the Court issued an order to show cause why claims against Defendants Gaspar and Ogata should not be dismissed without prejudice for failure to serve pursuant to FRCP 4(m). ECF No. 174. The Court warned Plaintiff that failure to respond may result in dismissal of the claims against Defendants Gaspar and Ogata. Id. Plaintiff responded to the order to show cause on March 12, 2019. ECF No. 179. The letter outlined Plaintiff's attempts to effectuate service as follows:

• In his Motion Requesting Council (sic), filed on May 16, 2016, Plaintiff requested counsel for various reasons, including his limited ability to investigate the case, finding the names of all appropriate defendants, and the sorting out of the personal involvement of multiple witnesses. See Dkt. No. 8. The motion was denied on May 19, 2016.
• Plaintiff attempted to follow the orders for service laid out in Magistrate Judge Richard L. Puglisi's Order Directing Service, filed on May 19, 2016. See Dkt. No. 9. Indeed, Plaintiff was able to get a Summons in a Civil Action issued as to Defendants Gaspar and Ogata. See Dkt. No. 15 and 17.
• Additionally, Plaintiff filed a Second Amended Complaint on June 29, 2016, once he was able to find out who “Jane Doe” and “Susan Doe” were.
• On March 20, 2017, Plaintiff filed Questions regarding Defendants' Request for Answers to Interrogatories and Request for Summary Judgment for no reply from Evelyn Gaspar and Lisa Ogata. See Dkt. No. 44.
• As the Order, dated March 31, 2017 by Judge Puglisi indicates, Plaintiff did seek diligently to find contact information for Defendants Gaspar and Ogata, but the answer was that they were not employed by the Department of Public Safety and they did not have contact information for them. See Dkt. No. 46; also Dkt. No. 22.
• On July 30, 2018, the Clerk of Court issued Plaintiff a subpoena to compel the Department of Public Safety for the names and contact information for the contracting agencies used for Defendants Gaspar and Ogata.
• On August 28, 2018, Plaintiff filed a Motion for Extension to Join Additional Parties and Request for Time for the Department of Public Safety to Respond to Subpoenas Issued July 30, 2018. See Dkt. No. 150 and Judge Puglisi's Order Regarding the motion, filed on September 4, 2018, Dkt. No. 151.

ECF No. 179 at 2-3. For the reasons stated in Plaintiff's response to the order to show cause, the Court granted Plaintiff's request for additional time to effectuate service until June 1, 2019. ECF No. 186. Plaintiff failed to serve Defendants Gaspar and Ogata by the deadline.

         Pursuant to the Federal Rules of Civil Procedure (“FRCP”) 4(c)(1), Plaintiff, not the Court, is responsible for serving a summons with the complaint:

A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the ...

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