Cares v. County of San Benito et al

Filing 42

ORDER DISMISSING DEFENDANT ERIC TRIOLO. Eric Triolo terminated. Signed by Judge Haywood S. Gilliam, Jr. on 10/3/2019. (ndrS, COURT STAFF) (Filed on 10/3/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS JEFFERSON CARES,
Plaintiff,

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United States District Court
Northern District of California

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v.

Case No. 18-cv-07651-HSG
ORDER DISMISSING DEFENDANT
ERIC TRIOLO

ERIC TRIOLO, et al.,
Defendants.

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Plaintiff Thomas Jefferson Cares, proceeding in forma pauperis, filed this civil action in

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December 2018 against Defendants Eric Triolo, Kelly Burbank, Paul Gilles, the County of San

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Benito, Darren Thompson, Gregory LaForge, Mitt French, and Patrick Palacios. Dkt. No. 1. The

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only remaining Defendants are Defendants Triolo, Burbank, and Gilles. Dkt. No. 38. Defendants

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Burbank and Gilles have been served. The Marshal was unable to serve Defendant Triolo because

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he appears to have changed residences. See Dkt. No. 18.

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On June 26, 2019, the Court ordered that within sixty (60) days, Plaintiff must effect

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service on Defendant Triolo, or submit to the Court sufficient information to locate Defendant

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Triolo such that the Marshal is able to effect service. Dkt. No. 40. The Court warned Plaintiff that

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failure to do so would result in dismissal of Defendant Triolo without prejudice pursuant to Rule

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4(m) of the Federal Rules of Civil Procedure. Id. Federal Rule of Civil Procedure 4(m) provides

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that if a defendant is not served within 90 days after the complaint is filed, a court, “on motion or

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on its own after notice to the plaintiff,” must dismiss the action against the unserved defendant

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without prejudice. See Fed. R. Civ. P. 4(m). If a plaintiff shows good cause for failure, a court

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must extend the time for service.

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The parties filed a joint status report on September 24, 2019, updating the Court on the

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progress of Plaintiff’s criminal case and Plaintiff’s efforts to serve or locate Defendant Triolo.

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Dkt. No. 41. Plaintiff states that he is unable to effect service on or locate Defendant Triolo. Id.

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Accordingly, given that it is now well past the 90 days for Plaintiff to effect service under Rule

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4(m), the Court DISMISSES Defendant Triolo WITHOUT PREJUDICE. The Clerk shall

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terminate Defendant Triolo from the case.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: 10/3/2019
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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