(PS) Visconte v. Garg ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NOHA VISCONTE, No. 2: 2:23-cv-00980-DAD-CKD PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. 14 SUNIL GARG, et al. 15 Defendants. 16 17 On May 24, 2023, plaintiff, proceeding without the assistance of counsel, filed the instant 18 action, paid the filing fee, and was given summonses and an initial scheduling order by the Clerk 19 of Court.1 (See ECF Nos. 1, 2, 3, 4.) On October 13, 2023, the court ordered plaintiff to file a 20 statement with the court indicating the status of service, or any good cause reasons why 21 defendants have not been served pursuant to FRCP 4.2 (ECF No. 5.) The court served a copy of 22 the order on plaintiff at the address she provided; however on November 2, 2023, the order was 23 returned as undeliverable.3 Nonetheless, on October 27, 2023, plaintiff filed a response to the 24 1 This matter was referred to the undersigned under Local Rule 302(c)(21). 25 2 On October 20, 2023, plaintiff filed a First Amended Complaint and on October 27, 2023 26 plaintiff filed a Second Amended Complaint. (ECF Nos. 6, 8.) Rule 15(a)(1)(A) provides: “A party may amend its pleading once as a matter of course within ... 21 days after serving it.” Fed. 27 R. Civ. P. 15 (emphasis added). As plaintiff never served her original complaint on defendants, the court construes the original complaint as the operative complaint. 28 3 The Local Rules require that persons appearing in propria personal keep the Court and opposing 1 order to show cause. (ECF No. 7.) 2 Rule 4(m) provides that, if service of the summons and complaint is not made upon a 3 defendant within 90 days of filing the complaint, a federal district court must dismiss the action 4 without prejudice, after notice to the plaintiff. If, however, a plaintiff shows good cause for the 5 failure to serve the complaint within that time frame, the court must extend the time for 6 accomplishing service. Fed. R. Civ. P. 4(m). 7 Plaintiff has not established good cause for her failure to serve. Plaintiff informed the 8 court that she failed to effect service because she was kidnapped by a gang of Armenian criminals 9 who are in cahoots with Bank of America and Citibank bank managers. (ECF No. 7 at 2-3.) 10 Although the court is sympathetic to plaintiff’s understanding of her situation, the court does not 11 find plaintiff has provided a credible explanation for her failure to effect service on defendants. 12 As no good cause has been established, Rule 4(m) mandates that this action be dismissed. 13 Accordingly, IT IS HEREBY RECOMMENDED that: 14 1. This action be dismissed without prejudice; 15 2. The Clerk of Court be directed to close this case. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 18 days after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 21 shall be served on all parties and filed with the court within fourteen (14) days after service of the 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 27 28 parties advised as to their current address. L.R. 183(b). ] objections. The parties are advised that failure to file objections within the specified time may 2 || waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9" Cir. 3 || 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 4 || Dated: November 21, 2023 Cad Kt | (£4 (g— 5 CAROLYNK. DELANEY 6 UNITED STATES MAGISTRATE JUDGE 7 || 21, visc.0980 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28