Amerisure Insurance Company v. R&L Carriers, Inc ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AMERISURE INSURANCE COMPANY, ) Case No.: 1:20-cv-01134-DAD-JLT ) 12 Plaintiff, ) FINDINGS AND RECOMMENDATIONS TO ) DISMISS DEFENDANT MIDAS SOLUTIONS 13 v. ) INCORPORATED PURSUANT TO RULE 4(M) ) 14 R&L CARRIERS, INC, A CORPORATION, ) [FOURTEEN-DAY OBJECTION DEADLINE] 15 et al., ) Defendants. ) 16 ) 17 On December 18, 2020, the court issued an order to plaintiff to show cause why Defendant 18 Midas Solutions Incorporated should not be dismissed for failure to comply with Rule 4 of the Federal 19 Rules of Civil Procedure. (Doc. 16.) Plaintiff has not responded to the order to show cause and the 20 time period for doing so has expired. 21 DISCUSSION 22 Rule 4(m) of the Federal Rules of Civil Procedure provides: 23 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 24 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 25 service for an appropriate period. 26 27 Well over 90 days have passed since the complaint was filed, and the plaintiff has not shown 28 good cause for failing to serve Defendant Midas Solutions Incorporated. The court’s order to show 1 cause cautioned the plaintiff that “[f]ailure to comply will result in a recommendation that this 2 defendant be dismissed.” (Doc. 16 at 2.) Accordingly, dismissal is warranted for the claims against 3 Defendant Midas Solutions Incorporated pursuant to Rule 4(m). Dismissal pursuant to Rule 4 4(m) would be without prejudice. 5 RECOMMENDATION 6 Based upon the foregoing, the court RECOMMENDS that Defendant Midas Solutions 7 Incorporated and all claims against it be dismissed without prejudice from this action. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 10 Rules of Practice for the United States District Court, Eastern District of California. Within fourteen 11 days after being served with these findings and recommendations, plaintiff may file written objections 12 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 13 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 14 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); 15 Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 16 17 IT IS SO ORDERED. 18 Dated: January 8, 2021 /s/ Jennifer L. Thurston 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28