Rodgers v. Tilton et al

Filing 78

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 2/6/13 RECOMMENDING that plaintiffs April 5, 2012 motion to withdraw settlement agreement and re-open proceedings (Doc. No. 74 ) be denied. Referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN RODGERS,

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Plaintiff,

No. 2:07-cv-2269 WBS DAD

vs.
JAMES E. TILTON, et al.,
Defendant.

FINDINGS & RECOMMENDATIONS
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On April 2, 2012, plaintiff filed a motion to withdraw the settlement agreement in

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this action and re-open the proceedings. (Doc. No. 74.) Therein, plaintiff contended that

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defendants had not timely paid the settlement amount agreed to at the settlement conference. On

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August 21, 2012, defendants filed a response to plaintiff’s motion with evidence that the balance

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of the settlement had been paid to plaintiff after deduction of the balance plaintiff owed in

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restitution plus a statutorily required administrative fee on said restitution. (Doc. No. 76.) By

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court order filed October 12, 2012, plaintiff was directed to file within twenty-one days a reply to

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defendants’ response to his motion to withdraw the settlement agreement and re-open the

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proceedings. (Doc. No. 77.) That order was served on plaintiff’s address of record and returned

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by the postal service as undeliverable. It appears that plaintiff has failed to comply with Local

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Rule 183(b), which requires that a party appearing in propria persona inform the court of any
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address change. More than sixty-three days have passed since the court order was returned by the

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postal service and plaintiff has neither notified the Court of a current address nor responded with

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any evidence contesting defendants’ representation that the terms of the settlement reached in

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this action have now been satisfied.

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Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s April 5, 2012
motion to withdraw settlement agreement and re-open proceedings (Doc. No. 74) be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Any response to the objections shall be filed and served

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within fourteen days after service of the objections. Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 6, 2013.

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DAD:12
rodg07cv2269.fr

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