Clark v. Doe ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 WALTER CLARK, Case No. 1:21-cv-01827-JLT-EPG 11 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE DISMISSED 12 v. WITHOUT PREJUDICE FOR FAILURE TO COMPLETE SERVICE PURSUANT 13 TO FEDERAL RULE OF CIVIL CMEGRO.TOP, et al., PROCEDURE 4(m) 14 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 14 15 DAYS 16 17 I. BACKGROUND 18 Plaintiff Walter Clark proceeds through counsel in this civil action against Defendant 19 CMEgro.top and Doe Defendants 1-20. (ECF No. 1). Due to Plaintiff’s failure to complete 20 service on CMEgro.top and Does 1-20 pursuant to Federal Rule of Civil Procedure 4(m), the 21 Court will recommend that this action be dismissed from this action without prejudice. 22 Plaintiff filed the complaint commencing this action on December 29, 2021, generally 23 alleging that Defendants defrauded him of cryptocurrency via an exchange website. (ECF No. 1). 24 A summons was issued on that same date. (ECF No. 4). Plaintiff has not filed a return of service 25 demonstrating that Plaintiff has accomplished service of the complaint on any Defendant, nor has 26 a waiver of service been filed by any Defendant. 27 Given these circumstances, the Court entered an order on April 26, 2022, directing 28 Plaintiff to show cause why this action should not be dismissed without prejudice for failure to 1 complete service pursuant to Federal Rule of Civil Procedure 4(m). (ECF No. 8). Plaintiff’s 2 response was due no later than May 13, 2022. To date, Plaintiff has not filed any response despite 3 being warned that failure to respond could result in the dismissal of this action. 4 II. LEGAL STANDARDS 5 Under Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within 90 days 6 after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must 7 dismiss the action without prejudice against that defendant or order that service be made within a 8 specified time.” Fed. R. Civ. P. 4(m). However, “if the plaintiff shows good cause for the failure, 9 the court must extend the time for service for an appropriate period.” Id. 10 III. ANALYSIS 11 Here, there is no indication on the docket that Plaintiff has served any Defendant. 12 Moreover, despite being directed to show cause why this action should not be dismissed under 13 Rule 4(m), Plaintiff has not filed anything to excuse his failure to serve Defendants. Accordingly, 14 Plaintiff having failed to offer proof of service or good cause to excuse service, the Court will 15 recommend that this action be dismissed without prejudice. 16 IV. RECOMMENDATION 17 Based on the foregoing, IT IS RECOMMENDED that this action be dismissed without 18 prejudice because of Plaintiff’s failure to complete service pursuant to Federal Rule of Civil 19 Procedure 4(m). 20 These Findings and Recommendations are submitted to the assigned United States District 21 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 22 Rules of Practice for the United States District Court, Eastern District of California. Within 23 fourteen (14) days after service of the Findings and Recommendations, Plaintiff may file written 24 objections with the Court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned United States 26 District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 27 § 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may 28 waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 1 | Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 3 IT IS SO ORDERED. 4) Dated: _May 17, 2022 [sf hey 5 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