Amerisure Insurance Company v R&L Carriers, Inc, et al.

Filing 18

FINDINGS and RECOMMENDATIONS to Dismiss Defendant Midas Solutions Incorporated Pursuant to Rule 4(M), signed by Magistrate Judge Jennifer L. Thurston on 1/8/2021. Referred to Judge Dale A. Drozd. Objections to F&R due within 14 days. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17

)
)
)
Plaintiff,
)
v.
)
)
R&L CARRIERS, INC, A CORPORATION, )
et al.,
)
Defendants.
)
)
AMERISURE INSURANCE COMPANY,

Case No.: 1:20-cv-01134-DAD-JLT
FINDINGS AND RECOMMENDATIONS TO
DISMISS DEFENDANT MIDAS SOLUTIONS
INCORPORATED PURSUANT TO RULE 4(M)
[FOURTEEN-DAY OBJECTION DEADLINE]

On December 18, 2020, the court issued an order to plaintiff to show cause why Defendant

18

Midas Solutions Incorporated should not be dismissed for failure to comply with Rule 4 of the Federal

19

Rules of Civil Procedure. (Doc. 16.) Plaintiff has not responded to the order to show cause and the

20

time period for doing so has expired.

21

DISCUSSION

22

Rule 4(m) of the Federal Rules of Civil Procedure provides:

23

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 period.

24
25
26
27
28

Well over 90 days have passed since the complaint was filed, and the plaintiff has not shown
good cause for failing to serve Defendant Midas Solutions Incorporated. The court’s order to show
1

1

cause cautioned the plaintiff that “[f]ailure to comply will result in a recommendation that this

2

defendant be dismissed.” (Doc. 16 at 2.) Accordingly, dismissal is warranted for the claims against

3

Defendant Midas Solutions Incorporated pursuant to Rule 4(m). Dismissal pursuant to Rule

4

4(m) would be without prejudice.
RECOMMENDATION

5
6
7

Based upon the foregoing, the court RECOMMENDS that Defendant Midas Solutions
Incorporated and all claims against it be dismissed without prejudice from this action.

8

These findings and recommendations are submitted to the United States District Judge

9

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

10

Rules of Practice for the United States District Court, Eastern District of California. Within fourteen

11

days after being served with these findings and recommendations, plaintiff may file written objections

12

with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

13

Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

14

waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991);

15

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

16
17
18
19

IT IS SO ORDERED.
Dated:

January 8, 2021

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25
26
27
28
2