Opinion
2:22-cv-254-TLF
05-17-2023
NEAL STROBEL, Plaintiff, v. GLEN JAMES LESNICK et al.,, Defendants.
Noted for June 2, 2023
REPORT AND RECOMMENDATION
Theresa L. Fricke, United States Magistrate Judge
This matter comes before the Court on Plaintiff's failure to respond to the Court's order to show cause instructing Plaintiff to file proof of service or show good cause for his failure to effect service against the named Defendants. Dkt. 42. Plaintiff was given until February 10, 2023, to respond. To date, the Court has received neither a response to the order to show cause from Plaintiff nor a request for extension of time to respond. Plaintiff was informed that failure to file proof of service under Federal Rule of Civil Procedure 4(m) or show good cause for his failure to effect service in a timely manner would result in the Court recommending that the case be dismissed.
According to Federal Rules of Civil Procedure, 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” Fed.R.Civ.P. 4(m). In this case, the Amended Complaint was filed more than 120 days ago - it was with this Court on September 1, 2022 (Dkt. 34). For this reason and because there is no evidence in the record that this case has been served properly, this Court recommends that this action be dismissed without prejudice.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the Clerk is directed to set the matter for consideration on June 2, 2023, as noted in the caption.
A copy of this Order is to be mailed to pro se plaintiff at the latest address provided to the Court.