Negrete v. Curkan
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Case No. 1:16-cv-00956-LJO-MJS
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION WITHOUT PREJUDICE
PURSUANT TO FEDERAL RULE OF CIVIL
LINDA LEE CURKAN,
Plaintiff Jorge Negrete initiated this action on July 5, 2016 against Defendant
Linda Lee Curkan. (ECF No. 1.) A summons issued the same day. (ECF No. 2.) An initial
scheduling conference was set. (ECF No. 3.) The scheduling conference was continued
several times due to Plaintiffs’ apparent failure to serve Defendant. (ECF Nos. 4, 5, 6.)
Plaintiff was reminded of the obligation to serve Defendant in compliance with Federal
Rule of Civil Procedure 4(m). (Id.) Eventually, on April 6, 2017, the Court ordered Plaintiff
to show cause, within fourteen days, why the action should not be dismissed for failure
to serve Defendant. (ECF No. 7.) Plaintiff did not respond to the order to show cause
and, to date, the docket reflects no efforts to serve Defendant.
Federal Rule of Civil Procedure 4(m) provides, in pertinent part: “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 that
defendant or order that service be made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time for service for an appropriate
Here, service of the complaint is more than 180 days overdue. Plaintiff was
provided notice of the Court’s intention to dismiss the action but did not respond. No
good cause has been show that would require the Court to extend the time for service.
Accordingly, dismissal of the action is appropriate.
Based on the foregoing, it is HEREBY RECOMMENDED that the action be
dismissed without prejudice pursuant to Rule 4(m).
The findings and recommendation will be submitted to the United States District
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).
Within fourteen (14) days after being served with the findings and recommendation,
Plaintiff may file written objections with the Court. The document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised
that failure to file objections within the specified time may result in the waiver of rights on
appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.
Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
April 24, 2017
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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