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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

THOMAS EUGENE MOORE,

Plaintiff,

v.

THE AMERICAN TOBACCO COMPANY,

INC.; PHILLIP MORRIS INCORPORATED; R.J.

REYNOLDS TOBACCO COMPANY; BROWN

& WILLIAMSON TOBACCO CORPORATION;

BRITISH AMERICAN TOBACCO CO., LTD;

LIGGET GROUP, INC.; LIGGET & MYERS,

INC.; THE COUNCIL FOR TOBACCO

RESEARCH-U.S.A., INC.; THE TOBACCO

INSTITUTE, INC.; LORILLARD TOBACCO

COMPANY; AND DOES 1 through 60,

inclusive, 

Defendants.

_______________________________________/

CIV. S-04-1895 MCE PAN PS

 ORDER TO SHOW CAUSE

This case was referred to the undersigned on May 24, 2006, for decision

pursuant to E.D. Cal. L.R. 72-302(c)(21). The court now issues this order to show cause. 

Plaintiff filed this action on May 29, 2002, in Sacramento County Superior

Court, and defendant Brown & Williamson removed it to this court on September 10, 2004. On

September 10, 2004, this court directed plaintiff to complete service of process on all parties

within 120 days, or by January 8, 2005, as permitted by 28 U.S.C.A. § 1448 (“In all cases

Case 2:04-cv-01895-MCE -EFB Document 31 Filed 08/14/06 Page 1 of 2
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removed from any State court to any district court of the United States in which any one or more

of the defendants has not been served with process or in which the service has not been perfected

prior to removal, or in which process served proves to be defective, such process or service may

be completed or new process issued in the same manner as in cases originally filed in such

district court”).

Sacramento County Superior Court records indicate that as of June 2003

plaintiff had effected service of process only upon defendants Brown & Williamson and R. J.

Reynolds. On May 27, 2003, the Sacramento County Superior Court granted R. J. Reynolds’

motion to quash service of summons. By separate findings and recommendations, this court

recommends dismissal of Brown & Williamson for insufficiency of service of process pursuant

to Fed. R. Civ. P. 12(b)(5). To date plaintiff has provided no proof he ever attempted to serve, or

to obtain waiver of service from, any other defendant and no defendant has answered plaintiff’s

complaint. 

Fed. R. Civ. P. 4(m) provides: “If service of the summons and complaint is

not made upon a defendant within 120 days after the filing of the complaint, the court, upon

motion or on its own initiative after notice to the plaintiff, shall dismiss the action . . . provided

that if the plaintiff shows good cause for the failure, the court shall extend the time for service for

an appropriate period.”

Plaintiff is hereby directed to show cause in writing within thirty days of

service of this order why this action should not be dismissed for failure to serve the remaining

defendants. No extensions will be granted. Failure to respond to this order shall result in a

recommendation this action be dismissed. 

DATED: 8/14/06 /s/ Gregory G. Hollows

_______________________ 

 

GREGORY G. HOLLOWS

 U. S. MAGISTRATE JUDGE

NOW6:MOORE.OSC

Case 2:04-cv-01895-MCE -EFB Document 31 Filed 08/14/06 Page 2 of 2