Negrete v. Curkan

Filing 8

FINDINGS and RECOMMENDATIONS recommending that the Action be DISMISSED Without Prejudice Pursuant to Rule 4(m) re 1 Complaint signed by Magistrate Judge Michael J. Seng on 4/24/2017. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JORGE NEGRETE,
Plaintiff,

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v.

Case No. 1:16-cv-00956-LJO-MJS
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION WITHOUT PREJUDICE
PURSUANT TO FEDERAL RULE OF CIVIL
PROCEDURE 4(m)

LINDA LEE CURKAN,
Defendant.

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Plaintiff Jorge Negrete initiated this action on July 5, 2016 against Defendant

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Linda Lee Curkan. (ECF No. 1.) A summons issued the same day. (ECF No. 2.) An initial

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scheduling conference was set. (ECF No. 3.) The scheduling conference was continued

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several times due to Plaintiffs’ apparent failure to serve Defendant. (ECF Nos. 4, 5, 6.)

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Plaintiff was reminded of the obligation to serve Defendant in compliance with Federal

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Rule of Civil Procedure 4(m). (Id.) Eventually, on April 6, 2017, the Court ordered Plaintiff

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to show cause, within fourteen days, why the action should not be dismissed for failure

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to serve Defendant. (ECF No. 7.) Plaintiff did not respond to the order to show cause

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and, to date, the docket reflects no efforts to serve Defendant.

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Federal Rule of Civil Procedure 4(m) provides, in pertinent part: “If a defendant is

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not served within 90 days after the complaint is filed, the court--on motion or on its own

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after notice to the plaintiff--must dismiss the action without prejudice against that

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defendant or order that service be made within a specified time. But if the plaintiff shows

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good cause for the failure, the court must extend the time for service for an appropriate

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period.”

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Here, service of the complaint is more than 180 days overdue. Plaintiff was

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provided notice of the Court’s intention to dismiss the action but did not respond. No

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good cause has been show that would require the Court to extend the time for service.

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Accordingly, dismissal of the action is appropriate.

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Based on the foregoing, it is HEREBY RECOMMENDED that the action be
dismissed without prejudice pursuant to Rule 4(m).

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The findings and recommendation will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with the findings and recommendation,

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Plaintiff may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised

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that failure to file objections within the specified time may result in the waiver of rights on

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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

April 24, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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