Opinion
CV-22-00210-PHX-JJT (JZB)
01-13-2023
Julia Gowan, Plaintiff, v. Denis R. McDonough, et al., Defendants.
ORDER
Honorable John J. Tuchi United States District Judge.
At issue is the Report and Recommendation (Doc. 22, “R&R”) entered in this matter by Untied States Magistrate Judge John Z. Boyle recommending that Plaintiff's claims against Defendants Lopez and Wright be dismissed without prejudice pursuant to Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure. In the R&R, Judge Boyle advised the parties that they had 14 days from its service to file specific written objections, and that failure to so file timely objections “may result in the acceptance of the Report and Recommendation by the district court without further review [and] failure to file timely objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the [R&R].” (R&R at 6-7.) Thirty-eight days have elapsed since the parties were deemed served with the R&R through ECF publication and Petitioner has filed no objections, timely or otherwise. The Court therefore may accept the R&R without further review pursuant to United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) and Petitioner's right of appellate review over any factual determinations in the Court's judgment are considered waived pursuant to Fed.R.Civ.P. 72. This Court nonetheless conducted an independent review of the R&R, and upon doing so, concludes Judge Boyle's findings and recommendations are correct. Service of Defendants Lopez and Wright was not within the 90 days allotted in Rule 4(m), which expired June 13, 2022. Even now, nearly seven months later, sufficient proof of service of these defendants is absent, despite multiple opportunities and warnings to provide it, as Judge Boyle pointed out. Similarly, under Rule 41(b), dismissal is proper for Plaintiff's failure to comply with this Court's Orders, respond to the Orders to Show Cause, or otherwise prosecute this case, without excuse. Therefore
IT IS ORDERED adopting the R&R (Doc. 22) in full.
IT IS FURTHER ORDERED dismissing without prejudice this matter as against Defendants Lopez and Wright only pursuant to Rules 4(m) an d41(b), Fed. R. Civ. P.