Zimmerman v. Home Depot U.S.A., Inc.

Filing 11

REPORT AND RECOMMENDATION that this case be dismissed without prejudice for Plaintiff's failure to prosecute. Objections to R&R due by 10/26/2017. Signed by Magistrate Judge George Foley, Jr on 10/12/2017. (Copies have been distributed pursuant to the NEF - SLD)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 12 KEVIN ZIMMERMAN, ) ) Plaintiff, ) ) vs. ) ) HOME DEPOT U.S.A., INC. ) dba THE HOME DEPOT #3316, ) ) Defendant. ) __________________________________________) Case No. 2:17-cv-01454-JCM-GWF REPORT AND RECOMMENDATION 13 Plaintiff’s Complaint (ECF No. 1) was filed on May 20, 2017. Therefore, the time limit for 14 service on Defendant was August 18, 2017. On August 31, 2017, the Court filed a Notice of Intent 15 to Dismiss Pursuant to Rule 4(m) for Plaintiff’s failure to provide proof of service on Defendant. 16 See ECF No. 8. The Court gave Plaintiff until September 29, 2017 to file a proof of service and 17 demonstrate that Defendant was served prior to the expiration of the 90-day time limit set forth in 18 Fed. R. Civ. P. 4(m). Id. Plaintiff was cautioned that failure to comply with the Court’s notice 19 could result in a dismissal of the action. Id. Rather than file a proof of service, Plaintiff filed a 20 Motion to Extend Time for Service on September 1, 2017. See ECF No. 9. The Court denied 21 Plaintiff’s motion, without prejudice, on September 7, 2017 because Plaintiff did not adequately 22 demonstrate whether good cause existed to grant the requested extension. See Order (ECF No. 10). 23 To date, Plaintiff has not filed a renewed motion for extension of time or filed a proof of service 24 with the Court. Therefore, it appears that Plaintiff has abandoned this lawsuit. Accordingly, 25 ... 26 ... 27 ... 28 ... 1 2 3 IT IS HEREBY RECOMMENDED that this case be dismissed without prejudice for Plaintiff’s failure to prosecute. DATED this 12th day of October, 2017. 4 5 6 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 7 NOTICE 8 Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be 9 in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has 10 held that the courts of appeal may determine that an appeal has been waived due to the failure to file 11 objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has 12 also held that (1) failure to file objections within the specified time and (2) failure to properly 13 address and brief the objectionable issues waives the right to appeal the District Court’s order and/or 14 appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 15 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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