Opinion
23-cv-06359-TSH
04-05-2024
MICHELLE SOLOBAY, Plaintiff, v. PRESIDIO TRUST, Defendant.
ORDER FOR REASSIGNMENT WITH REPORT AND RECOMMENDATION
THOMAS S. HIXSON UNITED STATES MAGISTRATE JUDGE
On December 11, 2023, Plaintiff Michelle Solobay filed this complaint against Defendant Presidio Trust. To date, no proof of service of the summons and complaint has been filed.
On March 8 the Court vacated the March 14 case management conference and ordered Plaintiff to file a status report by March 21, 2024. ECF No. 11. Plaintiff failed to respond. As such, the Court ordered Plaintiff to show cause, in writing and no later than April 4, 2024, why this case should not be dismissed for failure to serve within the time required by Federal Rule of Civil Procedure 4(m). ECF No. 12. The Court warned Plaintiff “that failure to file a written response will be deemed an admission that you do not intend to prosecute, and this case will likely be dismissed. Thus, it is imperative the Court receive a written response by the deadline above.” Id. (emphasis in original). Plaintiff has again failed to respond.
Proper service of process is a prerequisite to the Court's exercise of personal jurisdiction over a defendant. Fed.R.Civ.P. 4(k). “‘A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Federal Rule of Civil Procedure 4.'” Crowley v. Bannister, 734 F.3d 967, 974-75 (9th Cir. 2013) (quoting Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009)). “If a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m).
This case has been pending for nearly four months, yet Plaintiff has made no appearance since filing her complaint. Plaintiff also failed to respond to the Court's request for a status report and failed to respond to the show cause order. As such, the Court finds dismissal without prejudice is appropriate pursuant to Rule 4(m).
As Plaintiff has not consented to magistrate judge jurisdiction, the Court requests the Clerk of Court reassign this case to a district judge with the recommendation that the case be DISMISSED WITHOUT PREJUDICE.
Pursuant to Federal Rule of Civil Procedure 72, any party may serve and file objections to this report and recommendation within 14 days after being served with a copy.
IT IS SO ORDERED.