Cramer v. Target Corporation et al
Filing
183
ORDER Dismissing Complaint as to Defendant Yant and Directing the Clerk of Court to Enter Judgment in Favor of Remaining Defendants, signed by Magistrate Judge Sheila K. Oberto on 11/28/11. CASE CLOSED. (Gonzalez, R)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
MATTHEW B. CRAMER,
CASE NO. 1:08-cv-01693-SKO
10
11
12
Plaintiff,
ORDER DISMISSING COMPLAINT
AS TO DEFENDANT YANT AND
DIRECTING THE CLERK OF
COURT TO ENTER JUDGMENT
IN FAVOR OF REMAINING
DEFENDANTS
v.
13
TARGET CORPORATION, et al.,
14
Defendants.
15
/
16
17
I.
INTRODUCTION
18
This action proceeds on Plaintiff's First Amended Complaint ("FAC") filed on February 17,
19
2009. (Doc. 10.) Plaintiff's claim arises out of a theft incident at a Target Store on March 3, 2008,
20
to which Plaintiff pled "no contest." (Doc. 10, 6:13 ("Plaintiff does not dispute he pled no contest
21
to this theft.").)
22
In his FAC, Plaintiff asserts that his civil rights were violated due to the conduct of the Target
23
Corporation ("Target") employees, who detained him and questioned him following his theft in the
24
store, as well as the responding police officer who arrested him. The FAC named four defendants:
25
Target employees Michael J. Yant ("Yant"), Eric Heller ("Heller"), and a doe supervisor (who was
26
later identified as Clebo Wheatly ("Wheatly")), as well as Police Officer Greg Barrios ("Barrios").
27
For the reasons set forth below, the claim against Defendant Yant stated in the FAC is DISMISSED
28
WITHOUT PREJUDICE.
1
II.
FACTUAL BACKGROUND
2
Pursuant to the Court's screening order on Plaintiff's FAC, service of the FAC upon
3
Defendants Yant, Heller, and Barrios was deemed appropriate. (Doc. 15.) Plaintiff provided the
4
address of the Tulare Target store for purposes of service of process on Yant and Heller. (Docs. 21,
5
23.) The summons as to Yant was returned unexecuted because he no longer worked at the Target
6
store at the time of service. (Doc. 23.)
7
On May 6, 2010, the Court informed Plaintiff that service of the FAC had not been effected
8
as to Defendant Yant within 120 days of the filing of the FAC as required by the Federal Rules.
9
(Doc. 80.) The Court provided Plaintiff an additional 45 days to provide the current address of
10
Defendant Yant so that service of the FAC could be accomplished. (Doc. 80).
11
Subsequently, upon Plaintiff's motion, the Court issued a subpoena on Target to provide the
12
last known address of Yant under seal for purposes of service of process. (Doc. 89.) Target
13
provided the last known address of Defendant Yant (Doc. 111), service was attempted by the United
14
States Marshal at that address on August 10, 2010, but Defendant Yant was not found at that address
15
(Doc. 128).
16
III.
DISCUSSION
17
Rule 4 of the Federal Rules of Civil Procedure states that "[i]f a defendant is not served
18
within 120 days after the complaint is filed, the court – on motion or on its own after notice to the
19
plaintiff – must dismiss the action without prejudice against that defendant or order that service be
20
made within a specified time." Fed. R. Civ. P. 4(m).
21
The FAC was filed on February 17, 2009, but service upon Defendant Yant has not been
22
accomplished. Plaintiff has been given notice that the action against Defendant Yant is subject to
23
dismissal for failure to timely serve Yant with the FAC. (Doc. 80.) Plaintiff has been unable to
24
locate or provide an address for service of the FAC on Defendant Yant. Therefore, the action as to
25
Defendant Yant must be dismissed without prejudice.
26
Finally, because the remaining Defendants' motions for summary judgment have been
27
granted, judgment shall be entered in favor of those Defendants and the case shall be
28
administratively closed.
2
1
IV.
CONCLUSION
2
Accordingly, IT IS HEREBY ORDERED that:
3
1.
4
The claim stated in the First Amended Complaint against Defendant Yant is
DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 4(m);
5
2.
6
The Clerk of Court is DIRECTED to enter judgment in favor of Defendants Barrios,
Heller, and Wheatly and against Plaintiff Cramer; and
7
3.
8
Upon entry of judgment, the Clerk of Court is DIRECTED to administratively close
this case.
9
10
IT IS SO ORDERED.
11
Dated:
ie14hj
November 28, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?