Opinion
No. CV 07-504 TUC JMR (JCG).
March 19, 2008
ORDER
This case involves an appeal by Plaintiff from the Commissioner's denial of social security benefits. Plaintiff has failed to timely serve Defendant with the Complaint in this matter. Plaintiff was warned that she risked dismissal of the action by failing to comply with the time limitation provisions of Fed.R.Civ.P. 4(m). Despite this warning Plaintiff has still failed to effect service. On February 20, 2008 Plaintiff's counsel filed a status report stating that he had been unable to locate Plaintiff since September 2007; counsel further sought an additional 45 days to continue the search for Plaintiff.
Plaintiff's counsel has attempted to contact Plaintiff via certified mail to her last known address, he has hired an investigative firm to attempt to locate Plaintiff, he has conferred with Plaintiff's ex-husband regarding Plaintiff's whereabouts, and he has left telephone messages for Plaintiff at her last known telephone number (which is also the telephone number for Plaintiff's parents). Despite these efforts, Plaintiff has not been located.
Plaintiff's counsel filed the complaint in October in order to preserve Plaintiff's claim, and there is no evidence to suggest that Plaintiff is even aware that a complaint has been filed on her behalf, or that she ever intended or intends to pursue this action. On February 26, 2007, Magistrate Judge Guerin issued a Report and Recommendation ("R R") to this Court, recommending that the action be dismissed pursuant to Fed.R.Civ.P. 4(m). Neither party filed an objection to the R R. When there are no objections to the R R, the Court will modify or set aside only those portions that are clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998).
Fed.R.Civ.P. 4(m) provides that a court must extend the time for service if good cause has been shown by the Plaintiff as to why service was not effected in a timely fashion. In this case Plaintiff has not shown good cause for her failure to serve Defendant. See Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987) (stating that "good cause" excludes mistakes of counsel and the desire to amend a complaint before service). The Court has carefully reviewed the entire record and concludes that Magistrate Judge Guerin's recommendations are not clearly erroneous or contrary to law. The Court agrees that Plaintiff's failure to effect service, coupled with the failure to keep her own lawyer informed of her whereabouts, warrants dismissal of the action.
Accordingly,
IT IS ORDERED that the REPORT AND RECOMMENDATION of Magistrate Judge Guerin (Doc. No. 11) is ADOPTED. IT IS FURTHER ORDERED that CV 07-504 TUC JMR (JCG) be DISMISSED WITHOUT PREJUDICE. The Clerk of Court shall issue judgment accordingly.