Opinion
22-cv-03405-VKD
10-17-2022
ERIN K. MAUDE, Plaintiff, v. CIRO BARBOZA, et al., Defendants.
ORDER FOR REASSIGNMENT TO DISTRICT JUDGE
REPORT AND RECOMMENDATION TO DISMISS ACTION WITHOUT PREJUDICE
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Erin K. Maude filed this action on June 9, 2022. Dkt. No. 1. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, Ms. Maude's last day to complete service on defendants was September 7, 2022. The Court extended this deadline to October 10, 2022 on its own initiative and ordered Ms. Maude to file a proof of service with the Court. Dkt. No. 6. In addition, the Court cautioned: “If Ms. Maude does not properly serve defendant[s] by October 10, 2022, this action will be subject to dismissal pursuant to Rule 4(m).” Id..
To date, Ms. Maude has provided no indication that she has served any defendant by that deadline or that good cause exists to extend the service deadline further.
None of the defendants has appeared or consented to magistrate judge jurisdiction. Absent the consent of all parties, this Court does not have jurisdiction to decide the case. 28 U.S.C. § 636; Williams v. King, 875 F.3d 500 (9th Cir. 2017). Accordingly, the Court directs the Clerk of the Court to reassign this matter to a district judge, with the following report and recommendation that the complaint be dismissed without prejudice for failure to timely serve process on defendants and for failure to prosecute.
REPORT AND RECOMMENDATION
On June 9, 2022, Ms. Maude filed a complaint alleging that, pursuant to 42 U.S.C. § 1983, defendants violated her constitutional rights in connection with the removal of her children by Child Protective Services. Dkt. No. 1. On September 8, 2022, the Court issued an order directing Ms. Maude to serve defendants by October 10, 2022 because she had not already done so within 90 days of the filing of her complaint. Dkt. No. 6. The Court also directed Ms. Maude to file proof of service of the complaint by October 10, 2022. Id.
The clerk's office issued summonses for defendants Ciro Barboza and Francis Magbag. Dkt. Nos. 7, 8. However, summonses have not issued for Sam Lavorato, Jr. or Timothy P. Robert, and Ms. Maude has not filed proof of service of any summons on any defendant, contrary to the Court's order.
“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). The service deadline may be extended upon a showing of good cause. Id. Furthermore, the Court possesses the inherent power to dismiss an action sua sponte “to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 629-33 (1962).
To date, Ms. Maude has failed to comply with the Court's order regarding service of process. She has not sought relief from the existing deadline or offered any explanation for her failure to timely serve defendants. Ms. Maude has taken no other steps to prosecute this action. In its September 8, 2022 order, the Court specifically advised Ms. Maude that if she did not serve defendants by October 10, 2022, this action would be subject to dismissal. See Dkt. No. 6.
Accordingly, the Court directs the Clerk of the Court to reassign this action to a district judge and recommends that the newly assigned district judge dismiss the case without prejudice for failure to timely serve summons and failure to prosecute.
Any party may file objections to this report and recommendation with the district court judge within fourteen days after being served with a copy. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Civ. L.R. 72-3. Failure to file objections within the specified time may waive the right to appeal the district court's ultimate order.
IT IS SO ORDERED.