Dominguez v. JPMorgan Chase Bank, N.A. et al

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/9/12 RECOMMENDING that 1 Complaint be dismissed with prejudice for failure to comply with court orders and failure to prosecute the case. Referred to Judge Morrison C. England, Jr.; Objections to F&R due 14 days after being served with these findings and recommendations. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EMERSON A. DOMINGUEZ,

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Plaintiff,

No. 2:12-cv-0579 MCE CKD PS

vs.

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JPMORGAN CHASE BANK, et al.

FINDINGS AND RECOMMENDATIONS

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Defendants.
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Plaintiff filed the instant action against numerous defendants, including lenders

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and a title company, on March 5, 2012 asserting claims of fraud, violation of the Truth in

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Lending Act (“TILA”), violation of California’s Rosenthal Fair Debt Collection Practices Act,

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violation of the Real Estate Settlement Procedures Act (“RESPA”), breach of fiduciary duty,

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violations of Cal. Bus. & Prof. Code § 17200, breach of the implied covenant of good faith and

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fair dealing, negligence, and quiet title. (See Dkt. No. 1.) Plaintiff paid the filing fee and is

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proceeding pro se. The action was referred to the undersigned pursuant to E.D. Cal. L.R.

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302(c)(21) and 28 U.S.C. § 636(b)(1).

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The court’s March 5, 2012 order, issued to plaintiff along with the process papers
at the intake counter that same day, directed plaintiff to complete service of process on
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defendants within 120 days, i.e. by July 3, 2012. (Dkt. No. 3 at 1.) Plaintiff was cautioned that

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the action may be dismissed if service of process is not accomplished within 120 days from the

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date that the complaint was filed. (Id.); see also Fed. R. Civ. P. 4(m). The court’s March 5, 2012

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order also sets a status conference for August 8, 2012 at 10:00 a.m. (Dkt. No. 3 at 2.) It further

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ordered the parties to file status reports addressing various matters not later than fourteen (14)

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days prior to the status conference, i.e. by July 25, 2012. (Dkt. No. 3 at 2-3.) Additionally, the

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order cautioned that “[f]ailure to comply with the Federal Rules of Civil Procedure or Local

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Rules of Practice for the United States District Court, Eastern District of California, or orders of

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this court, may result in dismissal of this action” and that “[e]ven parties without counsel will be

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expected to comply with the procedural rules.” (Dkt. No. 3 at 2.)

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There has been no docket activity since the complaint was filed and process issued

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on March 5, 2012. This suggests that the defendants have not been served with process in this

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matter, especially given that some are relatively large companies that would likely retain counsel

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and respond to the complaint. Furthermore, no status reports were filed to date, and neither

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plaintiff nor any defendants appeared at the status conference. Therefore, the court concludes

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that, in addition to failure to comply with various court orders, plaintiff has abandoned

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prosecution of this case.

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Accordingly, for the reasons outlined above, IT IS HEREBY RECOMMENDED
that:
1. The action be DISMISSED WITH PREJUDICE pursuant to Fed. R. Civ. P.
41(b) for failure to comply with court orders and failure to prosecute the case.

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2. The Clerk of Court be directed to close this case.

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

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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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

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Dated: August 9, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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CKD/5
Dominguez.579.fr.wpd

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