Hendrik Block v. K & K Sisters, LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HENDRIK BLOCK, Case No. 1:20-cv-01265-NONE-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT K 13 v. & K SISTERS , LLC BE DISMISSED FROM THIS ACTION FOR FAILURE TO 14 K & K SISTERS, LLC, et al., SERVE IN COMPLIANCE WITH RULE 4(m) 15 Defendants. OBJECTIONS DUE WITHIN TEN DAYS 16 17 Plaintiff filed this action alleging violation of the Americans With Disabilities Act on 18 September 3, 2020, against 3K Investment Company, LLC and K & K Sisters, LLC. (ECF No. 19 1.) The summons and an order setting the mandatory scheduling conference issued on 20 September 8, 2020, and informed Plaintiff that he was to “diligently pursue service of the 21 summons and complaint” and “promptly file proofs of the service.” (ECF No. 3 at 1.) Plaintiff 22 was referred to Rule 4 of the Federal Rules of Civil Procedure regarding the requirement of 23 timely service of the complaint. (Id. at 1-2.) Further, Plaintiff was advised that “[f]ailure to 24 comply may result in the imposition of sanctions, including dismissal of unserved Defendants.” 25 (Id. at 2.) 26 Plaintiff filed a first amended complaint on October 19, 2020, adding Defendant Jack 27 Terzian as a defendant and the summons issued on October 20, 2020. (ECF Nos. 4, 5.) On November 17, 2020, an order issued requiring Plaintiff to notify the court of the status of service 1 on the defendants. (ECF No. 6.) Plaintiff filed a notice of service and requested the scheduling 2 conference be continued on November 20, 2020. (ECF No. 7.) Plaintiff sought an additional 3 thirty days to serve the summons and complaint. (Id.) On November 20, 2020, an order issued 4 granting Plaintiff’s request and he was provided with an additional thirty days to serve the 5 complaint. (ECF No. 8.) More than thirty days have passed and Plaintiff has not filed a proof of 6 service showing that Defendant K & K Sisters, LLC has been served with the summons and 7 complaint. 8 On January 13, 2021, an order to show cause issued requiring Plaintiff to show cause 9 why Defendant K & K Sisters, LLC should not be dismissed from this action for failure to serve 10 in compliance with Rule 4(m) of the Federal Rules of Civil Procedure. On January 18, 2021, 11 Plaintiff filed a response to the order to show cause. In the response, Plaintiff states that he has 12 been unable to serve Defendant K & K Sisters, LLC and the parties that have been served have 13 reached a tentative settlement agreement that will resolve this matter in its entirety. Plaintiff has 14 no objection to the dismissal of Defendant K & K Sisters, LLC from this action without 15 prejudice. 16 Rule 4(m) addresses the time requirements for service of the complaint in civil cases. 17 The Rule provides: 18 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 19 without 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 20 extend the time for service for an appropriate period. 21 Fed. R. Civ. P. 4(m). Here, Plaintiff has not served Defendant K & K Sisters LLC within the 22 time period provided by Rule 4(m) and has not shown good cause to extend the time for service 23 of process. 24 Accordingly, IT IS HEREBY RECOMMENDED that Defendant K & K Sisters, LLC be 25 dismissed from this action for failure to serve the complaint in compliance with Rule 4(m) of the 26 Federal Rules of Civil Procedure. 27 This findings and recommendations is submitted to the district judge assigned to this 1 | days of service of this recommendation, any party may file written objections to this findings 2 | and recommendations with the court and serve a copy on all parties. Such a document should be 3 | captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district 4 | judge will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 5 | 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 6 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 7 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 9 IT IS SO ORDERED. OF a Se 10 | Dated: _January 19, 2021 _ ef 4 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28