(PS) Aetius v. Triple Canopy ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AUGUSTUS AETIUS, No. 2:21–cv–2120–TLN–KJN PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO SERVE 13 v. (ECF No. 3.) 14 TRIPLE CANOPY, 15 Defendant. 16 17 On November 16, 2021, plaintiff, proceeding without counsel, filed a fee-paid complaint 18 against defendant.1 (ECF No. 1.) The next day, the Clerk of Court issued service documents 19 which were served on plaintiffs by mail. (ECF Nos. 2, 3.) On February 23, 2022, the 20 undersigned ordered plaintiffs to show cause why the case should not be dismissed for failure to 21 serve process. (ECF No. 4.) No response was filed. 22 As explained in the court’s prior orders, service of the summons and complaint must occur 23 within 90 days of filing the complaint, unless otherwise ordered. Fed. R. Civ. P. 4(c)(1) & (m). 24 If a defendant is not served by the deadline, the court—on motion or on its own after notice to the 25 plaintiff—must dismiss the action without prejudice against that defendant, or order that service 26 be made within a specified time if good cause is shown. Fed. R. Civ. P. 4(m). 27 1 Because plaintiff is representing himself in this action, all pre-trial proceedings are referred to 28 the undersigned pursuant to 28 U.S.C. § 636(b)(1) and E.D. Cal. Local Rule 302(c)(21). ] Here, four months have now passed without service of process, and without a response 2 | from plaintiff on the court’s show cause order. The court sees no good cause to extend the 3 || service deadline further. Townsel v. Contra Costa County, 820 F.2d 319, 320 (9th Cir. 1987) 4 | (noting that ignorance of or confusion about service requirements does not constitute “good 5 || cause” for failure to serve). Thus, this case should be dismissed without prejudice. See Fed. R. 6 || Civ. P. 4(m); see also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must 7 || follow the same rules of procedure that govern other litigants.”’). 8 RECOMMENDATIONS 9 Accordingly, IT IS HEREBY RECOMMENDED that plaintiffs claims be DISMISSED 10 | WITHOUT PREJUDICE, and the Clerk of Court be directed to CLOSE this case. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within fourteen (14) 13 || days after being served with these findings and recommendations, plaintiff may file written 14 || objections with the court. Such a document should be captioned “Objections to Magistrate 15 || Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within 16 || the specified time may waive the right to appeal the district court’s order. Turner v. Duncan, 158 17 | F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 18 | Dated: March 15, 2022 Aectl Aharon 20 KENDALL J. NE neti.2100 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28