Opinion
No. 2:19-cv-00220 WBS AC
07-08-2020
JERRY KRAUS, Plaintiff, v. DING CHUAN CHEN, Defendant.
FINDINGS AND RECOMMENDATIONS
This case is before the court on an unopposed motion to dismiss, ECF No. 25, which presents a problem of mistaken identity. Defendant Ding Chuan Chen of Fremont, California, is proceeding in this matter pro se, and pre-trial proceedings are accordingly referred to the undersigned pursuant to Local Rule 302(c)(21). On March 31, 2020, the parties filed a joint stipulation to withdraw the answer of the currently appearing defendant Chen, who was admittedly served in error. ECF No. 18. The correct defendant, who has the same name, was served by publication and default was entered against that person (ECF Nos.16, 24), though the original, erroneously served defendant was never removed from the docket.
Currently appearing defendant Chen has now moved to have himself dismissed from this case on the grounds that he was erroneously served. ECF No. 25. Plaintiff agrees that Ding Chuan Chen of Fremont, California, who currently appears as the defendant in this case, is not the correct defendant and should be removed from this case. ECF No. 30 at 2. On the basis of this stipulation, the undersigned recommends that the motion to dismiss (ECF No. 25) be GRANTED and that the Ding Chuan Chen who currently appears on the docket be dismissed and terminated from this case.
Accordingly, the undersigned recommends the motion to dismiss at ECF No. 25 be GRANTED and that Ding Chuan Chen of Fremont, California, who currently appears as defendant in this case, be DISMISSED while the case proceeds against the individual also named Ding Chuan Chen who has been served by publication and against whom default has been entered by the Clerk of Court.
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-one 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. Id.; see also Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). DATED: July 8, 2020
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE