Opinion
CV-21-0071-TUC-JGZ (JR)
09-10-2021
William Douglas Marcum, Plaintiff, v. Mary Jane Abril, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau United States Magistrate Judge
For the reasons explained below, the Court recommends that the District Court, after its independent review, dismiss this action without prejudice.
I. Discussion
On January 10, 2021, Plaintiff filed the Complaint (Doc. 1). The docket does not reflect that summonses were issued for the Defendants or that service has been completed. Pursuant to Federal Rule of Civil Procedure 4(m), if service of the summons and complaint are not accomplished within 90 days after the complaint is filed, the Court must dismiss the action without prejudice or order that service be made within a specified time. Rule 4(m) also provides that, if the plaintiff shows good cause for the failure, the Court must extend the time for service for an appropriate period. Fed.R.Civ.P. 4(m). Additionally, Federal Rule of Civil Procedure 41(b) permits the dismissal of a case sua sponte for failure to prosecute. See Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 630 (1962) (authority of court to dismiss sua sponte under Rule 41(b) based on plaintiff's failure to prosecute); and Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (district court may dismiss an action for failure to comply with any order of the court).
On July 13, 2021, the Magistrate Judge issued an Order to Show Cause (Doc. 13) giving Plaintiff 31-days to show cause why the Magistrate Judge should not recommend to the District Court that this case be dismissed for failure to serve the Summons and Complaint and failure to prosecute. The Order to Show Cause alternatively provided that Plaintiff could discharge the order by filing service waivers for the Defendants or by serving the Summons and Complaint on the Defendants and filing corresponding proofs of service within 30 days of the filing of the order. Finally, the order warned Plaintiff that his failure to comply with its requirements would result in the issuance of a recommendation by the Magistrate Judge that the District Court dismiss of this action without further notice. The deadline to show cause has expired and, as of the date of this Report and Recommendation, the docket does not indicate that service of the Summons and Complaint has been completed on any Defendant.
II. Recommendation
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, enter an order DISMISSING this action without prejudice based on the Plaintiff's failure to prosecute.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No. reply briefs shall be filed unless leave to do so is granted by the district court. If any objections are filed, this action should be designated case number: CV 21-0071-TUC-JGZ. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).