(PS) Kraus v. Chen ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY KRAUS, No. 2:19-cv-00220 WBS AC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 DING CHUAN CHEN, 15 Defendant. 16 17 This case is before the court on an unopposed motion to dismiss, ECF No. 25, which 18 presents a problem of mistaken identity. Defendant Ding Chuan Chen of Fremont, California, is 19 proceeding in this matter pro se, and pre-trial proceedings are accordingly referred to the 20 undersigned pursuant to Local Rule 302(c)(21). On March 31, 2020, the parties filed a joint 21 stipulation to withdraw the answer of the currently appearing defendant Chen, who was 22 admittedly served in error. ECF No. 18. The correct defendant, who has the same name, was 23 served by publication and default was entered against that person (ECF Nos.16, 24), though the 24 original, erroneously served defendant was never removed from the docket. 25 Currently appearing defendant Chen has now moved to have himself dismissed from this 26 case on the grounds that he was erroneously served. ECF No. 25. Plaintiff agrees that Ding 27 Chuan Chen of Fremont, California, who currently appears as the defendant in this case, is not the 28 correct defendant and should be removed from this case. ECF No. 30 at 2. On the basis of this wOAOe 2 LUV MVM ECU RSENS MVUIOCT 1 | stipulation, the undersigned recommends that the motion to dismiss (ECF No. 25) be GRANTED 2 | and that the Ding Chuan Chen who currently appears on the docket be dismissed and terminated 3 | from this case. 4 Accordingly, the undersigned recommends the motion to dismiss at ECF No. 25 be 5 || GRANTED and that Ding Chuan Chen of Fremont, California, who currently appears as 6 || defendant in this case, be DISMISSED while the case proceeds against the individual also named 7 | Ding Chuan Chen who has been served by publication and against whom default has been entered 8 || by the Clerk of Court. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 11 | after being served with these findings and recommendations, any party may file written 12 || objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 13 || document should be captioned “Objections to Magistrate Judge’s Findings and 14 | Recommendations.” Failure to file objections within the specified time may waive the right to 15 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 16 || v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 17 | DATED: July 8, 2020 18 CtAt0r2— Lhar—e_ ALLISON CLAIRE 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28