Montoya v. Seag et al

Filing 20

ORDER REJECTING 17 Report and Recommendation and denying 19 Motion to Re-Serve Defendant. The Clerk shall enter a judgment of dismissal without prejudice. Signed by Senior Judge Roslyn O Silver on 9/2/14. (LSP)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Joey Frank Montoya, Plaintiff, 10 11 ORDER v. 12 No. CV-13-01491-PHX-ROS Unknown Saeg, et al., 13 Defendants. 14 15 On April 8, 2014, Magistrate Judge James F. Metcalf issued a Report and 16 Recommendation (“R&R”) recommending this case be dismissed without prejudice 17 based on Plaintiff’s failure to complete service. (Doc. 17). Instead of objecting to the 18 R&R, Plaintiff filed a motion asking the marshals be instructed to attempt service again. 19 (Doc. 19). Normally, the Court would grant Plaintiff’s request and attempt to complete 20 service. However, in another case also filed by Plaintiff, the Court received notice that 21 Plaintiff’s mailing address is no longer valid. (Doc. 21 in CV-13-1575). Based on that 22 notice, it would be futile to take any further action in this case. See Carey v. King, 856 23 F.2d 1439, 1441 (9th Cir. 1988) (“An order to show cause why dismissal was not 24 warranted or an order imposing sanctions would only find itself taking a round trip tour 25 through the United States mail.”). Therefore, the R&R will be rejected and the motion 26 requesting service will be denied. But pursuant to Rule 41(b), this case will be dismissed 27 based on Plaintiff’s failure to keep his address updated. 28 Accordingly, 1 IT IS ORDERED the Report and Recommendation (Doc. 17) is REJECTED. 2 IT IS FURTHER ORDERED the Motion to Re-Serve Defendant (Doc. 19) is 3 4 5 6 DENIED. IT IS FURTHER ORDERED Clerk of Court shall enter a judgment of dismissal without prejudice. Dated this 2nd day of September, 2014. 7 8 9 Honorable Roslyn O. Silver Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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