Mulgrew v. Green Tree Servicing LLC et al

Filing 15

ORDER signed by Magistrate Judge Craig M. Kellison on 4/8/16 ORDERING that the FINDINGS AND RECOMMENDATIONS issued 10/22/15 12 are VACATED; Plaintiff's MOTION to vacate the order for dismissal 13 is GRANTED to the extent that the recommendat ion for dismissal is vacated; the Clerk of the Court is directed to send Plaintiff a copy of the order authorizing service (Doc. 8 ), a new summons, a USM-285 form, a copy of the complaint, and new case documents; and Plaintiff is required to effect service of process either through the USM or on his own pursuant to FRCP 4, as set forth above. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY MULGREW, JR.,

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No. 2:14cv2998-MCE-CMK

Plaintiff,
vs.

ORDER

GREEN TREE SERVICING LLC,
et al.,

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Defendants.
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Plaintiff, proceeding in propria persona, brings this civil action under 28 U.S.C.

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§ 1332. Pending before the court are plaintiff’s objections to the undersigned’s October 10,

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2015, findings and recommendations (Doc. 14). Plaintiff has also filed a motion to vacate the

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order of dismissal (Doc. 13).

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As set forth in the court’s previous orders, the court determined service of the

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complaint was appropriate on May 21, 2015, and required plaintiff to submit to the United States

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Marshal a completed summons and copies of the complaint, and to file a statement with the court

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within 20 days that said documents have been submitted. Plaintiff failed to do so within the time

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provided. In addition, mail directed to plaintiff was returned to the court as undeliverable.

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Accordingly, dismissal of this action was recommended for plaintiff’s lack of prosecution,
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failure to keep the court informed as to his current address, and failure to comply with court rules

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and orders. See Local Rule 110.

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In his objections, plaintiff informed the court that he did not receive the order

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authorizing service, not because he had failed to inform the court as to his current address, but

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apparently due to an error by the United States Postal Service. His mailing address has remained

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the same as that which the court mailed the order. Further, he indicates that he had attempted

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several times to determine the status of the issuance of the summons, but had been informed that

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none had been issued yet. Plaintiff asks the court to vacate the order of dismissal. However, no

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order of dismissal has been issued, on the recommendation that this action be dismissed.

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Good cause appearing therefor, the undersigned will vacate the findings and

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recommendations. If plaintiff desires service of process by the U.S. Marshal, he is required to

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submit the service documents to the U.S. Marshal as directed in the court’s prior order, within 15

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days of this order. Plaintiff must further inform the court that the documents have been

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submitted for service within 10 days thereafter. Otherwise, plaintiff is required to effect service

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of process pursuant to Federal Rule of Civil Procedure 4. Failure to effect service either way

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may result in dismissal of this action for lack of prosecution and failure to comply with court

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rules and orders. See Local Rule 110.

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Accordingly, IT IS HEREBY ORDERED that:

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The Findings and Recommendations issued October 22, 2015, are vacated;

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2.

Plaintiff’s motion to vacate the order for dismissal (Doc. 13) is granted to

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the extent that the recommendation for dismissal is vacated;

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3.

The Clerk of the Court is directed to send plaintiff a copy of the order

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authorizing service (Doc. 8), a new summons, a USM-285 form, a copy of the complaint, and

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new case documents; and

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///

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///
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Plaintiff is required to effect service of process either through the United

States Marshal or on his own pursuant to Federal Rules of Civil Procedure 4, as set forth above.

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DATED: April 8, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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