Opinion
No. 2:11-cv-03276 GEB KJN PS
07-03-2012
DAVID JOSEPH SALAZAR, Plaintiff, v. BRIAN T. MOYNIHAN, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
Plaintiff filed his complaint and an application for a temporary restraining order on December 12, 2011. The court denied plaintiff's application for a temporary restraining order on December 12, 2011, and no further activity appears to have occurred in this case since that date. Additionally, there is no indication on the court's docket that plaintiff attempted to serve, or actually served, any of the defendants with the summons, complaint, and related documents.
This action proceeds before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
On the basis of plaintiff's inaction, the court ordered plaintiff to show good cause in writing, no later than June 29, 2012, why this case should not be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). (Order to Show Cause, May 18, 2012, at 2, Dkt. No. 7.) The court warned plaintiff that "[p]laintiff's failure to file the required response shall constitute plaintiff's consent to the dismissal of his case without prejudice." (Id.) The court's docket reveals that plaintiff failed to respond to the OSC or take any other action in this case. Accordingly, the undersigned recommends that plaintiff's case be dismissed without prejudice pursuant to Rule 4(m).
In relevant part, Federal Rule of Civil Procedure 4(m) provides:
(m) Time Limit for Service. If a defendant is not served within 120 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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
1. This case be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
2. The Clerk of Court be directed to vacate all dates and close this case.
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 fourteen 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 E. Dist. Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). 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).
IT IS SO RECOMMENDED.
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KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE