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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THOMAS JEFFERSON CARES, Plaintiff, 8 9 10 United States District Court Northern District of California 11 v. Case No. 18-cv-07651-HSG ORDER DISMISSING DEFENDANT ERIC TRIOLO ERIC TRIOLO, et al., Defendants. 12 13 Plaintiff Thomas Jefferson Cares, proceeding in forma pauperis, filed this civil action in 14 December 2018 against Defendants Eric Triolo, Kelly Burbank, Paul Gilles, the County of San 15 Benito, Darren Thompson, Gregory LaForge, Mitt French, and Patrick Palacios. Dkt. No. 1. The 16 only remaining Defendants are Defendants Triolo, Burbank, and Gilles. Dkt. No. 38. Defendants 17 Burbank and Gilles have been served. The Marshal was unable to serve Defendant Triolo because 18 he appears to have changed residences. See Dkt. No. 18. 19 On June 26, 2019, the Court ordered that within sixty (60) days, Plaintiff must effect 20 service on Defendant Triolo, or submit to the Court sufficient information to locate Defendant 21 Triolo such that the Marshal is able to effect service. Dkt. No. 40. The Court warned Plaintiff that 22 failure to do so would result in dismissal of Defendant Triolo without prejudice pursuant to Rule 23 4(m) of the Federal Rules of Civil Procedure. Id. Federal Rule of Civil Procedure 4(m) provides 24 that if a defendant is not served within 90 days after the complaint is filed, a court, “on motion or 25 on its own after notice to the plaintiff,” must dismiss the action against the unserved defendant 26 without prejudice. See Fed. R. Civ. P. 4(m). If a plaintiff shows good cause for failure, a court 27 must extend the time for service. 28 1 The parties filed a joint status report on September 24, 2019, updating the Court on the 2 progress of Plaintiff’s criminal case and Plaintiff’s efforts to serve or locate Defendant Triolo. 3 Dkt. No. 41. Plaintiff states that he is unable to effect service on or locate Defendant Triolo. Id. 4 Accordingly, given that it is now well past the 90 days for Plaintiff to effect service under Rule 5 4(m), the Court DISMISSES Defendant Triolo WITHOUT PREJUDICE. The Clerk shall 6 terminate Defendant Triolo from the case. 7 8 9 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: 10/3/2019 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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