Rodriguez v. Doe et al

Filing 37

Findings & Recommendation: Motion to Dismiss for Lack of Prosecution 18 should be denied. Objections to the Findings and Recommendation are due by 5/1/2009. Signed on 4/15/2009 by Magistrate Judge Janice M. Stewart. (ST)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JERARDO RODRIGUEZ, Plaintiff, v. JOHN/JANE DOE, MS. HOWTON, CARLA TUPOU, CAPT. OGDEN, MS. TAYOR, DENYSE GOLDADE, LT. SCOTT, PAROLE BOARD, J. HULLY, and GARY PFENNING, Defendants. STEWART, Magistrate Judge. Plaintiff filed this civil action on March 7, 2008, but has not yet served defendants with summonses and a copy of his CV. 08-290-ST FINDINGS AND RECOMMENDATION

Complaint.1

The failure to serve defendants prompted them to file

a Motion to Dismiss pursuant to Fed. R. Civ. P. 4(m), which provides that the if service is not effected within 120 days of the filing of a lawsuit, the court must either dismiss the action
Plaintiff, who is not incarcerated, paid the $350.00 filing fee for this action and, therefore, is not proceeding in forma pauperis. Accordingly, while the court may order that service be completed by a United States Marshal, it is not required to do so. See Fed. R. Civ. P. 4(c)(3).
1

1 - FINDINGS AND RECOMMENDATION

without prejudice, or order that service be made within a specified time.2 While defendants have not been served in accordance with the terms of Rule 4, federal courts prefer to decide cases on their merits when reasonably possible. 1472 (9th Cir. 1986). Because Eitel v. McCool, 782 F.2d 1470, there is no indication that

defendants have suffered prejudice as a result of the delay in service, the Motion to Dismiss should be denied. If this

recommendation is adopted, the court will issue a Notice of Lawsuit and Request for Waiver of Service of Summons to defendants. defendants refuse to waive service, the court will If

require

plaintiff to accomplish service within 90 days. RECOMMENDATION For the reasons identified above, defendants' Motion to

Dismiss (docket #18) should be denied. SCHEDULING ORDER Objections to the Findings and Recommendation, if any, are due May 1, 2009. If no objections are filed, then the Findings

and Recommendation will be referred to a district judge and go under advisement on that date. ///

If objections are filed, then a response is due within 10 days after being served with a copy of the objections. When the

2 This motion was stayed pending an appeal by plaintiff to the Ninth Circuit Court of Appeals (docket #30).

2 - FINDINGS AND RECOMMENDATION

response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district judge and go under advisement. NOTICE This Findings and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment. DATED this 15th day of April, 2009. s/ Janice M. Stewart Janice M. Stewart United States Magistrate Judge

3 - FINDINGS AND RECOMMENDATION