Opinion
Case No. 1:13-cv-00753-LJO-SKO
10-24-2013
JAMES KENNETH BRIDGMAN, et al. Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
FINDINGS AND RECOMMENDATIONS
THAT THE COMPLAINT BE DISMISSED
WITHOUT PREJUDICE FOR FAILURE
TO SERVE THE COMPLAINT
OBJECTIONS DUE: 14 DAYS
Plaintiffs James Kenneth Bridgman, Janie Bridgman, and minor Sean Jennings (collectively "Plaintiffs") filed a complaint against the United States ("Defendant") on May 21, 2013, alleging a claim under the Federal Tort Claims Act. The case was set for an initial scheduling conference on September 24, 2013. (Doc. 6.)
Plaintiffs failed to file a proof of service, however, and there is no indication on the docket that the United States has been served with the complaint. Thus, on September 19, 2013, the Court continued the September 24, 2013, scheduling conference to October 29, 2013, and ordered Plaintiffs, no later than October 3, 2013, to either file a proof of service or a status report indicating whether Plaintiffs intend to prosecute their case. Fed. R. Civ. P. 4(m) (complaint must be served within 120 days of filing). Plaintiffs filed neither a proof of service nor a status report.
On October 8, 2013, the Court issued an order to show cause why the complaint should not be recommended for dismissal due to Plaintiffs' failure to serve the complaint and Plaintiffs' failure to comply with the order issued on September 19, 2013. (Doc. 9.) Plaintiffs failed to file any response to the order to show cause.
Pursuant to Federal Rule of Civil Procedure 4(m), where a plaintiff fails to serve a defendant within 120 days after filing the complaint, the court must dismiss the action without prejudice against that defendant. Here, there is no evidence that Plaintiffs served Defendant with the complaint filed on May 21, 2013, nor have they shown good cause for this failure such that the court could extend the deadline to do so.
Accordingly, IT IS HEREBY RECOMMENDED that this case be dismissed without prejudice pursuant to Federal Rule 4(m) for failure to serve the complaint and that the action be administratively closed.
These findings and recommendations are submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within fourteen (14) days of service of this recommendation, any party may file written objections to these findings and recommendations with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the district judge's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED.
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE