Opinion
No. CIV S-07-2758 FCD GGH P.
October 2, 2008
FINDINGS RECOMMENDATIONS
On May 28, 2008, service as to defendant Easterling was returned unserved because he is on long term military leave. Because it did not appear that service of defendant Easterling could be effected, on July 25, 2008, the court ordered plaintiff to show cause why defendant Easterling should not be dismissed.
On August 6, 2008, plaintiff filed a response to the May 28, 2008, order. Plaintiff argues that defendant Easterling should not be dismissed because plaintiff has stated a colorable claim for relief against him. While this may be true, the court is unable to effect service of defendant Easterling because he is on long term military leave. Leaving the matter of service of this defendant open indefinitely would interfere with the resolution of this action as well as the efficient operation of the court.
Accordingly, for the reasons discussed above, defendant Easterling should be dismissed without prejudice.
IT IS HEREBY RECOMMENDED that defendant Easterling be dismissed without prejudice.
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)(1). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are 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).