Opinion
No. 2:15-cv-1720 MCE GGH PS
04-14-2016
DE ION RICHARDS-DAIKAI, Plaintiff, v. DEPARTMENT OF MOTOR VEHICLES OF THE STATE OF CALIFORNIA, Defendant.
FINDINGS AND RECOMMENDATIONS
This action was referred to the undersigned pursuant to Local Rule 302(c)(21). Pursuant to Federal Rule of Civil Procedure 4(m) in effect when this action was filed, the court may dismiss an action where service of summons is not made within 120 days after the filing of the complaint. In the order requiring timely service filed December 2, 2015, plaintiff was cautioned that this action may be dismissed if service was not timely completed. This action was filed August 12, 2015 and plaintiff has not yet served defendant with summons. On March 17, 2016, plaintiff was ordered to show cause, within fourteen days, why his action should not be dismissed for failure to comply with Federal Rule of Civil Procedure 4(m). Plaintiff was warned that failure to timely file the required writing would result in a recommendation that the case be dismissed. The fourteen day period has now expired, and plaintiff has not shown cause or otherwise responded to the court's order.
The Federal Rules of Civil Procedure were recently amended to require service within ninety days. Fed. R. Civ. P. 4(m) (December 1, 2015 amendments). Although it is generally the case that the current rules are to be applied, the undersigned exercises his discretion to use the rule in effect at time of filing.
Accordingly, IT IS HEREBY RECOMMENDED that: this action be dismissed without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b).
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: April 14, 2016
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE GGH:076/Richards-Daikai1720.fr