Tamanaha v. Wells Fargo Bank, NA et al

Filing 20

FINDINGS AND RECOMMENDATION TO DISMISS DEFENDANT INDYMAC BANK, FSB WITHOUT PREJUDICE 1 . Objections to F&R due by 12/15/2010. Signed by JUDGE LESLIE E KOBAYASHI on 12/1/2010. (afc)CERTIFICATE OF SERVICEParticipant s registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

Tamanaha v. Wells Fargo Bank, NA et al

Doc. 20

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ) ) Plaintiff, ) ) vs. ) ) WELLS FARGO BANK, NA, INDYMAC ) BANK, FSB, and DOES 1 through ) 20 inclusive, ) ) ) Defendants. _____________________________ ) TRACY YOSHIYUKI TAMANAHA, CIVIL NO. 10-00273 DAE-LEK

FINDINGS AND RECOMMENDATION TO DISMISS DEFENDANT INDYMAC BANK, FSB WITHOUT PREJUDICE On May 7, 2010, Plaintiff Tracy Yoshiyuki Tamanaha ("Plaintiff") filed the instant action against Defendants Wells Fargo Bank, NA ("Wells Fargo") and Indymac Bank, FSB ("Indymac"). Plaintiff served Wells Fargo on August 11, 2010, and obtained an entry of default against Wells Fargo on September 9, 2010. This

Court granted Wells Fargo's Motion to Set Aside Entry of Default on October 25, 2010. Rule 16 Scheduling Conferences were set in this case on August 2, 2010 and September 2, 2010. At each, this Court noted On September 2, 2010,

that Plaintiff had not completed service.

this Court informed Plaintiff that, if service was not completed on Indymac by October 18, 2010, the Court would recommend that the case be dismissed as to Indymac. A triage conference was set

for November 9, 2010, but was not held because this Court noted

Dockets.Justia.com

that Plaintiff did not complete service on Indymac. of Civil Procedure 4(m) states, in pertinent part:

Federal Rule

If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. More than 120 days have passed since Plaintiff filed the Complaint, and the Court gave Plaintiff notice that it would recommend dismissal if Plaintiff did not complete service on Indymac by October 18, 2010. Plaintiff neither completed service

on Indymac nor established good cause for failing to serve Indymac. The Court therefore FINDS that, pursuant to Rule 4(m),

Plaintiff's Complaint should be dismissed as to Indymac. CONCLUSION On the basis of the foregoing, the Court HEREBY FINDS AND RECOMMENDS that Plaintiff's case be DISMISSED WITHOUT PREJUDICE as to Defendant Indymac Bank, FSB. The parties are advised that any objection to this Findings and Recommendation is due seventeen calendar days after being served with a copy of this Findings and Recommendation. See Fed. R. Civ. P. 5(b)(2) & 6(d); Local Rule LR74.2. objection is filed with the Court, it shall be captioned "Objections to Magistrate Judge's Findings and Recommendation." A copy of the objection shall be served on all parties. 2 If an

IT IS SO FOUND AND RECOMMENDED. DATED AT HONOLULU, HAWAII, December 1, 2010.

/S/ Leslie E. Kobayashi Leslie E. Kobayashi United States Magistrate Judge

TRACY YOSHIYUKI TAMANAHA V. WELLS FARGO BANK, NA, ET AL; CIVIL NO. 10-00273 DAE-LEK; FINDINGS AND RECOMMENDATION TO DISMISS DEFENDANT INDYMAC BANK, FSB WITHOUT PREJUDICE

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