(PS) Expose v. Fay Servicing, Inc. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LINDA ROSE EXPOSE, No. 2:19-cv-1866-TLN-KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO SERVE 13 v. 14 FAY SERVICING, INC., et al., 15 Defendants. 16 17 On September 17, 2019, plaintiff, proceeding pro se, filed a complaint against defendants 18 and sought to proceed in forma pauperis. (ECF Nos. 1, 2.) The undersigned recommended IFP 19 be denied and plaintiff be allowed to pay the filing fee in installments; the district court adopted 20 these recommendations. (ECF Nos. 16, 17.) Thereafter, plaintiff satisfied the filing fee, and the 21 clerk of the court issued service documents in early July of 2020. (ECF Nos. 21, 22, 23.) In 22 October, the court ordered plaintiff to state why she had not served defendants. (ECF No. 26.) 23 Plaintiff responded, indicating she was awaiting a prior request to serve by mail. (ECF No. 27.) 24 On November 13, the court withdrew its order to show cause, indicated that service by mail was 25 inappropriate at the time, and provided plaintiff until December 14, 2020, to serve defendants. 26 (ECF No. 28.) The deadline has passed, and plaintiff has again failed to demonstrate she has 27 served defendants. 28 /// 1 Instructions for service of process are contained in Rule 4 of the Federal Rules of Civil 2 Procedure. Service of the summons and complaint must occur within 90 days of filing the 3 complaint, unless otherwise ordered. Fed. R. Civ. P. 4(c)(1). If a defendant is not served by the 4 deadline, the court—on motion or on its own after notice to the plaintiff—must dismiss the action 5 without prejudice against that defendant or order that service be made within a specified time. 6 Fed. R. Civ. P. 4(m). 7 Here, plaintiff was provided service documents in July 2020, and was granted additional 8 time to effectuate service in November. Six months have now passed without service of process. 9 Ordinarily, pro se plaintiff are given great latitude in prosecuting their case, given their 10 unfamiliarity with the legal system and federal rules. See, e.g., Eriksen v. Washington State 11 Patrol, 2006 WL 994750, at *1 (E.D. Wash. Apr. 7, 2006) (“Generally pro se litigants are allowed 12 more latitude than litigants represented by counsel to correct defects in service of process and 13 pleadings.”) (quoting Moore v. Agency for Intern. Development, 994 F.2d 874 (D.C. Cir. 1993)). 14 However, pro se status in-and-of itself is not sufficient to show good cause for failure to serve. 15 Townsel v. Contra Costa County, 820 F.2d 319, 320 (9th Cir. 1987) (noting that ignorance of or 16 confusion about service requirements does not constitute “good cause” for failure to serve). In 17 October, plaintiff requested mail service, but had not shown reasonable diligence, and offered no 18 other good cause explanation. Given the lack of good cause and failure to serve, this case should 19 be dismissed. See Fed. R. Civ. P. 4(m); see also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 20 1987) (“Pro se litigants must follow the same rules of procedure that govern other litigants”). 21 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s claims be DISMISSED 22 WITHOUT PREJUDICE, and the Clerk of the Court be directed to CLOSE this case. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 28 objections shall be served and filed within fourteen days after service of the objections. The 1 | parties are advised that failure to file objections within the specified time may waive the right to 2 || appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: January 13, 2021 ' Acid) Aharon 5 KENDALL J. NE expo.1866 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28