United States District Court, D. Kansas
RAYMOND R. SCHWAB AND AMELIA D. SCHWAB, Plaintiffs,
KRIS KOBACH, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge.
matter is before the court on the court's orders to show
cause (Doc. 122; Doc. 123). For reasons explained below, the
court concludes (1) plaintiffs have 30 additional days to
serve defendant Amanda Allison-Ballard, and (2) defendant
Andrew Vinduska is dismissed for failure to prosecute.
procedure requires parties to serve process on all defendants
within 90 days of the filing of the complaint. Fed.R.Civ.P.
4(c), (m). But, plaintiffs have failed to serve certain
defendants within that deadline. So, on August 28, 2019, the
court ordered plaintiffs to show cause by September 5, 2019,
why the court should not dismiss defendants Amanda
Allison-Ballard and Andrew Vinduska for failure to prosecute
under Rule 41. Doc. 122; Doc. 123. Because plaintiffs have
registered to participate in the court's electronic
filing system, they received service of the Order by
electronic notice the same day. See D. Kan. Rule
5.4.9(a). Plaintiffs filed a Response to the show cause order
for defendant Amanda Allison-Ballard (Doc. 125) but failed to
respond to the show cause order for defendant Andrew
Rule of Civil Procedure 4(e) provides that a party may serve
an individual by: (1) delivery to the individual personally,
(2) delivery at the individual's dwelling or usual place
of abode, (3) delivery on the individual's authorized
agent, or (4) following state law governing service.
See Fed. R. Civ. P. 4(e). Kansas law authorizes
service by return receipt delivery “to an individual at
the individual's dwelling or usual place of abode.”
Kan. Stat. Ann. § 60-303(c)(1), 304(a). More
specifically, this Kansas statute provides:
The sheriff of the county in which the action is filed must
serve any process by any method authorized by this section,
or as otherwise provided by law, unless a party, either
personally or through an attorney, notifies the clerk that
the party elects to undertake responsibility for service.
The sheriff, party or party's attorney must give to the
person or entity effecting delivery a copy of the process and
petition or other document in a sealed envelope, with postage
or other delivery fees prepaid, addressed to the person to be
served in accordance with K.S.A. 60-304, and amendments
thereto. . . . Service of process is obtained under K.S.A.
60-203, and amendments thereto, upon the delivery of the
sealed envelope . . . . After service and return of the
return receipt, the sheriff, party or party's attorney
must execute and file a return of service. The return of
service must state the nature of the process, to whom
delivered, the date of delivery, the address where delivered
and the person or entity effecting delivery. It must include
a copy of the return receipt evidencing delivery.
Id. at § 60-303(b), (c)(2)-(4).
Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 90 days after the
complaint is filed, the court-on motion or on its own after
notice to the plaintiff-must dismiss the action without
prejudice against the defendant or order that service be made
within a specific time. But if the plaintiff shows good cause
for the failure, the court must extend the time for service
for an appropriate period.
Fed. R. Civ. P. (4)(m). While good cause is not defined in
the rule, “[t]he legislative history of the Rule cites
a defendant's evasion of service as the sole example of
‘good cause.'” Cox v. Sandia Corp.,
941 F.2d 1124, 1125 (10th Cir. 1991).