(PS) Obasohan v. Lemos ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN OBASOHAN, No. 2:19-cv-01557 JAM AC PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 PETER LEMOS, et al., 15 Defendants. 16 17 Plaintiff is proceeding in this action pro se and has paid the filing fee. The action was 18 accordingly referred to the undersigned for pretrial matters by E.D. Cal. R. (“Local 19 Rule”) 302(c)(21). On August 12, 2019, a scheduling order was issued in this case ordering the 20 plaintiff to serve a copy of the scheduling order and complete service of process on defendants 21 within 90 days of filing the complaint. ECF No. 2 at 1. Plaintiff was cautioned that failure to 22 complete service within 90 days may result in dismissal pursuant to Fed. R. Civ. P. 40(m). Id. 23 The deadline passed, and no certificate of service was filed. On January 6, 2020, the court issued 24 an order to show cause no later than January 20, 2020 why this case should not be dismissed for 25 failure to prosecute. ECF No. 7. The order specified that a showing of proof of service on 26 defendants would be deemed good cause, and that failure to comply with the order would result in 27 a recommendation that this case be dismissed. Id. at 2. 28 //// 1 On January 17, 2020, plaintiff filed two documents: (1) a Response to the order to show 2 || cause (ECF No. 8), and (2) a copy of the summons with “Notice to Eric Jones” hand-written at 3 || the top (ECF No. 9). Although the Response is 73 pages in length, it does not contain any proof 4 || of service, indicate any attempt to serve or intention to serve the defendants, or explain why 5 || service could not be timely effectuated. See ECF No. 8. To the contrary, the Response is entirely 6 || non-responsive to the Order to Show Cause, and appears to consist of factual material related to 7 || the underlying property dispute and related state court proceedings. Id. 8 The ‘“‘Notice to Eric Jones,” ECF No. 9, likewise does not address the service issue. There 9 | is nobody named “Eric Jones” listed as a defendant in this case. The copy of the summons bears 10 || astamp from the Stockton Police Department dated August 13, 2019, but the Stockton Police 11 || Department is likewise not a named defendant and the stamp does not provide any information 12 || about how the Police Department received a copy of the summons. There is no proof of service 13 || attached, and no explanation of any attempts to serve the summons and complaint on the named 14 | defendants under Fed. R. Civ. P. 4. 15 Therefore, IT IS HEREBY RECOMMENDED that this action be dismissed, without 16 || prejudice, for lack of prosecution and for failure to comply with the court’s order. See Fed. R. 17 | Civ. P. 41(b); Local Rule 110. 18 These findings and recommendations are submitted to the United States District Judge 19 | assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one 20 || (21) days after being served with these findings and recommendations, plaintiff may file written 21 || objections with the court. Such document should be captioned “Objections to Magistrate □□□□□□ □ 22 | Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file 23 || objections within the specified time may waive the right to appeal the District Court’s order. 24 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 25 || DATED: January 22, 2020 ~ 26 Mten—lhinee ALLISON CLAIRE 27 UNITED STATES MAGISTRATE JUDGE 28