Phillips v. Washington Mutual Bank FA
Filing
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FINDINGS and RECOMMENDATIONS, recommending that this action be dismissed without prejudice for failure to effect service w/in time specified, failure to comply with 1/24/2011 Order, and failure to prosecute action in any manner, signed by Magistrate Judge Dale A. Drozd on 5/20/2011. Within 14 days after being served with these F/Rs, plaintiff may file written Objections with Court. (Marciel, 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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LESLEY E. PHILLIPS,
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Plaintiff,
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No. CIV S-11-0089 JAM DAD PS
v.
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WASHINGTON MUTUAL BANK FA,
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Defendant.
FINDINGS AND RECOMMENDATIONS
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/
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On January 10, 2011, plaintiff, proceeding pro se, filed a complaint and paid the
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required filing fee. The Clerk of the Court issued a summons as to defendant Washington
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Mutual Bank FA. On January 24, 2011, the court filed and served on plaintiff an order setting a
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status conference before the undersigned on May 20, 2011. When the status conference was held
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on May 20, 2011, no appearance was made by or on behalf of plaintiff or defendant.
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By the January 24, 2011 order, plaintiff was cautioned that Federal Rule of Civil
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Procedure 4(m) “provides that a defendant must be dismissed if service of process is not
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accomplished on that defendant within 120 days from the date the complaint is filed.” (Order
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(Doc. No. 4) at 3.) Here, the 120-day period for service of process began to run on January 11,
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2011, and expired on May 10, 2011. Plaintiff has not filed evidence that service of process was
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accomplished on the defendant by May 10, 2011, and the defendant has not appeared in this
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action.
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Plaintiff failed to comply with the court’s January 24, 2011 order in additional
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ways. Plaintiff did not file a certificate of service indicating the date and manner of service of
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the January 24, 2011 order upon defendant, and plaintiff did not file a status report on or before
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May 6, 2011. Plaintiff was advised that failure to file a timely status report or failure to appear at
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the status conference “may result in a recommendation that this case be dismissed for lack of
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prosecution and as a sanction for failure to comply with court orders and applicable rules.” (Doc.
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No. 4 at 3.)
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Accordingly, IT IS RECOMMENDED that this action be dismissed without
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prejudice for failure to effect service within the time specified in Rule 4(m) of the Federal Rules
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of Civil Procedure, for failure to comply with the requirements of the court’s order filed January
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24, 2011, and for failure to prosecute this action in any manner.
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These findings and recommendations will be submitted to the United States
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District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
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fourteen (14) days after being served with these findings and recommendations, plaintiff may file
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written objections with the court. A document containing objections should be titled “Objections
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to Magistrate Judge’s Findings and Recommendations.” 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. See
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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: May 20, 2011.
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DAD:kw
Ddad1\orders.pro se\phillips0089.rule4m.dlop.f&r
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