Opinion
2:21-cv-01246-RAJ-BAT
12-27-2021
DEAN ERLING, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA United States Magistrate Judge
This matter has been referred to the undersigned United States Magistrate Judge. Dkt. 7. By counsel, Plaintiff Dean Erling filed a Complaint and Praecipe to Issue Summons on September 13, 2021. Dkts. 1, 2. On September 14, 2021, the Clerk advised Plaintiff's counsel that the summons was incomplete. Dkt. 3. On September 17, 2012, Plaintiff filed a second Praecipe to Issue Summons (Dkt. 5), which was also deficient. On September 20, 2021, the Clerk again emailed counsel with instructions regarding the deficiency.
Because Plaintiff made no further effort to serve the defendant, the Court ordered Plaintiff to show cause by December 21, 2021 why this case should not be dismissed for failure to perfect service within the time limit required under Fed.R.Civ.P. 4(m). Rule 4(m) states in pertinent part:
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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Here, the Court ordered Plaintiff to show cause why the case should not be dismissed under Rule 4 for failure to serve defendant. Plaintiff was thus given notice the case is subject to dismissal under Rule 4. Plaintiff filed the complaint on September 13, 2021 and was thus required to perfect service by December 13, 2021. Because Plaintiff has not responded to the Court's order to show cause order or filed proof of service, the Court recommends dismissing the case without prejudice under Rule 4.
Any objection to this report and recommendation must be filed by January 10, 2022. The clerk shall note this matter for January 14, 2022 as ready for the District Judge's consideration. The failure to object may affect the right to appeal.