Jackson v. Southwest Countrywide 2007 Corporate Pass-Through Certificate Series 2007, et al

Filing 11

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/17/2017 RECOMMENDING that this action be dismissed without prejudice. Objections due within 14 days after being served with these findings and recommendations. (Hunt, G)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHEN JACKSON, 12 Plaintiff, 13 14 15 No. 2:16-cv-3032 GEB DB PS v. FINDINGS AND RECOMMENDATIONS SOUTHWEST COUNTRYWIDE 2007 CORPORATE PASS-THROUGH CERTIFICATE SERIES, et al., 16 Defendants. 17 18 Plaintiff Stephen Jackson, proceeding pro se, commenced this action on December 28, 19 2016, by filing a complaint and paying the required filing fee. (ECF No. 1.) This matter was 20 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On December 29, 2016, plaintiff was served with a litigant letter that advised plaintiff that 21 22 Rule 4 of the Federal Rules of Civil Procedure (“Rule”) provides that if a defendant was not 23 served within 90 days the defendant would be dismissed from the action without prejudice. (ECF 24 No. 3.) On April 12, 2017, the court issued an order setting this matter for a Status (Pretrial 25 Scheduling) Conference before the undersigned. (ECF No. 4.) That order again advised plaintiff 26 that Rule 4 provides that a defendant must be dismissed if service of the summons and complaint 27 are not accomplished on the defendant within 90 days after the complaint was filed. (Id. at 3.) 28 //// 1 1 On May 11, 2017, the undersigned issued an order to show cause to plaintiff due to 2 plaintiff’s failure to file a timely status report. (ECF No. 5.) The order to show cause again 3 advised plaintiff of the requirements of Rule 4. (Id. at 2.) On May 23, 2017, plaintiff filed a 4 response to the order to show cause. (ECF No. 6.) Therein, plaintiff asserted that he had “been 5 unable to locate either of the Defendants,” but had “recently discovered another address” and 6 intended to effect personal service that same week. (Id. at 2.) 7 More than two more months passed without a defendant appearing or plaintiff filing a 8 proof of service. Accordingly, on August 9, 2017, the undersigned issued findings and 9 recommendations recommending that this action be dismissed due to plaintiff’s lack of 10 prosecution. (ECF No. 8.) On August 24, 2017, plaintiff filed a “RESPONSE” to those findings 11 and recommendations. (ECF No. 9.) Therein, plaintiff asserted that plaintiff was “not 12 disregarding nor ignoring the Court’s orders,” but that plaintiff had been unable to serve 13 summons on a defendant. (Id. at 2.) 14 Accordingly, the August 9, 2017, findings and recommendations recommending dismissal 15 due to plaintiff’s failure to prosecute were vacated on September 15, 2017. (ECF No. 10.) 16 Plaintiff was granted an additional forty-five days to serve a defendant. (Id. at 3.) Plaintiff was 17 cautioned that the failure to comply with that order could result in a recommendation that this 18 case be dismissed due to plaintiff’s failure to comply with Rule 4. (Id.) More than forty-five 19 days has passed, no defendant has appeared in this action, and plaintiff has not filed proof of 20 service on any defendant. 21 22 23 Rule 4(m) provides two avenues for relief. The first is mandatory: the district court must extend time for service upon a showing of good cause. The second is discretionary: if good cause is not established, the district court may extend time for service upon a showing of excusable neglect. 24 Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013) (quoting Lemoge v. United States, 587 25 F.3d 1188, 1198 (9th Cir. 2009)). 26 Here, this action was commenced almost one year ago. Despite being granted several 27 extension of time, plaintiff has failed to serve any defendant. Plaintiff’s most recent extension of 28 time has passed and plaintiff has shown neither good cause nor excusable neglect for plaintiff’s 2 1 2 3 4 failure to effect service. Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice pursuant to Rule 4(m). These findings and recommendations will be submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 6 days after being served with these findings and recommendations, plaintiff may file written 7 objections with the court. A document containing objections should be titled “Objections to 8 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 9 objections within the specified time may, under certain circumstances, waive the right to appeal 10 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 Dated: November 17, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 DLB:6 DB\orders\orders.pro se\jackson3032.rule4.f&rs 25 26 27 28 3

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