Okai v. Kaiser Permanente CSC

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NAA-ANORKOR OKAI, Case No.: 22-CV-112 TWR (BGS) JAMES KEVIN TILLORY, 12 ORDER (1) DISMISSING 13 Plaintiffs, PLAINTIFF TILLORY FROM ACTION, (2) DENYING LEAVE TO 14 v. AMEND COMPLAINT, AND 15 (3) ORDERING PLAINTIFF TO KAISER PERMANENTE CSC; et al., SHOW CAUSE WHY THIS ACTION 16 SHOULD NOT BE DISMISSED FOR 17 Defendants. FAILURE TO TIMELY TO EFFECT SERVICE ON DEFENDANTS 18 19 (ECF Nos. 13, 22)

20 PLAINTIFF JAMES TILLORY 21 On June 16, 2022, the Court ordered Plaintiff James Kevin Tillory to show cause 22 why he should not be dismissed from this case for lack of Article III standing. (See ECF 23 No. 13 (“Order”) at 5.) The Court instructed Tillory to file a response to the Order “not to 24 exceed ten (10) pages, within thirty (30) days of the date of th[e] Order.” (See id. at 6.) 25 Tillory, however, filed an untimely response that far exceeded the page limit. (See ECF 26 No. 26.) Accordingly, the document was rejected and stricken from the record. (See id.) 27 Thus, Tillory failed to show cause that he has Article III standing and the Court 28 DISMISSES WITHOUT PREJDUICE Plaintiff Tillory from the action. 1 LEAVE TO AMEND 2 On August 1, 2022, Plaintiff Okai filed a Motion for Leave to Amend Complaint 3 (“Mot.,” ECF No. 22). Pursuant to Federal Rule of Civil Procedure 15(a)(2), “[t]he court 4 should freely give leave [to amend] when justice so requires.” Five factors are taken into 5 account to assess the propriety of a motion for leave to amend: (1) bad faith, (2) undue 6 delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the 7 plaintiff has previously amended the complaint. See Johnson v. Buckley, 356 F.3d 1067, 8 1077 (9th Cir. 2004). 9 Plaintiff Okai seeks to amend her Complaint to “correct the plaintiff’s court case 10 lawsuit information . . . so as to also effectuate service of legal process on the primary 11 defendant.” (See id. at 14.)1 According to Plaintiff’s Motion, counsel for Kaiser 12 Foundation Health Plan (“KFHP”), mistakenly named as “Kaiser Permanente CSC,” 13 accepted service of Plaintiff’s Complaint on July 21, 2022.2 (See id. at 19.) KFHP’s 14 counsel did not accept service, however, for Defendants Lacey Lee or Diane Niethamer. 15 (Id.) 16 These exhibits do not satisfy Rule 4.3 See Fed. R. Civ. P. 4 (“Unless service is 17 waived, proof of service must be made to the court. Except for service by a United States 18 marshal or deputy marshal, proof must be by the server’s affidavit.”). Leave to amend, 19 therefore, will not cure Plaintiff’s failure properly to serve Defendants. Accordingly, as 20 amendment appears futile, the Court DENIES WITHOUT PREJUDICE Plaintiff’s 21 Motion for Leave to Amend.4 22 23 1 Citations to ECF No. 22 refer to the CM/ECF pagination.

24 2 Plaintiff appears properly to have served KFHP on July 20, 2022—beyond the 90 days allowed by Federal Rule of Civil Procedure 4(m); nonetheless, KFHP accepted service. (See Mot. at 19.) 25 3 Pro se plaintiffs still must follow the Federal Rules of Civil Procedure. See McNeil v. United 26 States, 508 U.S. 106, 113 (1993) (“We have never suggested that procedural rules in ordinary civil 27 litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”).

28 4 Further, Plaintiff failed to comply with the undersigned’s Civil Standing Order by including a 1 ORDER TO SHOW CAUSE 2 “If a defendant is not served within 90 days after the complaint is filed, the court-- 3 on motion or on its own after notice to the plaintiff--must dismiss the action without 4 prejudice against that defendant or order that service be made within a specified time.” 5 Fed. R. Civ. P. 4(m). Plaintiff initiated this action on January 27, 2022. (See ECF No. 1.) 6 Therefore, Plaintiff was required to serve all Defendants no later than April 27, 2022. 7 Plaintiff, however, has not filed proof of service on any Defendant. (See generally Docket.) 8 Accordingly, the Court ORDERS Plaintiff Okai to SHOW CAUSE as directed below why 9 this action should not be dismissed as to all Defendants pursuant to Rule 4(m) and Civil 10 Local Rule 4.1(b). 11 CONCLUSION 12 In light of the foregoing, the Court (1) DISMISSES WITHOUT PREJUDICE 13 Plaintiff Tillory from the action, (2) DENIES WITHOUT PREJUDICE Plaintiff Okai’s 14 Motion for Leave to Amend, and (3) ORDERS Plaintiff Okai to SHOW CAUSE why this 15 case should not be dismissed for failure timely to effect service in compliance with the 16 Federal Rules of Civil Procedure and this District’s Civil Local Rules. Should she wish to 17 proceed in this action, within thirty (30) days of the date of this Order, Plaintiff Okai 18 SHALL FILE (1) proof of service of the Summons and the Complaint on each Defendant; 19 and/or (2) a declaration under penalty of perjury showing good cause for her failure timely 20 to serve any unserved Defendants, accompanied by a brief motion for leave to serve process 21 outside of the ninety-day service limit. 22 / / / 23 / / / 24 / / / 25 / / / 26 27 amend. See Standing Order for Civil Cases Section III.A.5 (“Any amended pleading—not just those 28 accompanying a motion for leave to amend—must be accompanied by a redline showing how the amended 1 If Plaintiff Okai fails adequately to respond to this Order within the time provided, 2 || the Court will dismiss the action without prejudice. 3 IT IS SO ORDERED. 4 ||Dated: August 25, 2022 5 Tan (2 (re Honorable Todd W. Robinson United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28