Zimmerman v. Clemens Corp.

Filing 10

REPORT AND RECOMMENDATION. IT IS HEREBY RECOMMENDED that this case be DISMISSED without prejudice for Plaintiffs failure to prosecute. Objections to R&R due by 10/26/2017. Signed by Magistrate Judge George Foley, Jr on 10/12/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEVIN ZIMMERMAN,

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Plaintiff,
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vs.
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CLEMENS CORP.
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dba 7-ELEVEN STORE #25156C 2267,
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Defendant.
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__________________________________________)

Case No. 2:17-cv-01431-GMN-GWF

REPORT AND
RECOMMENDATION

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Plaintiff’s Complaint (ECF No. 1) was filed on May 19, 2017. Therefore, the time limit for

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service on Defendant was August 17, 2017. On August 23, 2017, the Court filed a Notice of Intent

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to Dismiss Pursuant to Rule 4(m) for Plaintiff’s failure to provide proof of service on Defendant.

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See ECF No. 7. The Court gave Plaintiff until September 22, 2017 to file a proof of service and

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demonstrate that Defendant was served prior to the expiration of the 90-day time limit set forth in

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Fed. R. Civ. P. 4(m). Id. Plaintiff was cautioned that failure to comply with the Court’s notice

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could result in a dismissal of the action. Id. Rather than file a proof of service, Plaintiff filed a

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Motion to Extend Time for Service on September 1, 2017. See ECF No. 8. The Court denied

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Plaintiff’s motion, without prejudice, on September 7, 2017 because Plaintiff did not adequately

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demonstrate whether good cause existed to grant the requested extension. See Order (ECF No. 9).

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To date, Plaintiff has not filed a renewed motion for extension of time or filed a proof of service

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with the Court. Therefore, it appears that Plaintiff has abandoned this lawsuit. Accordingly,

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IT IS HEREBY RECOMMENDED that this case be dismissed without prejudice for
Plaintiff’s failure to prosecute.
DATED this 12th day of October, 2017.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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NOTICE
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Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be
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in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has
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held that the courts of appeal may determine that an appeal has been waived due to the failure to file
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objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has
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also held that (1) failure to file objections within the specified time and (2) failure to properly
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address and brief the objectionable issues waives the right to appeal the District Court’s order and/or
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appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157
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(9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
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