Colvin v. United States ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARLENA COLVIN, ET AL., No. 2:23–cv–01787–CKD 12 Plaintiff, ORDER; FINDINGS AND RECOMMENDATIONS 13 v. 14 UNITED STATES OF AMERICA, ET AL., 15 Defendant. 16 17 This action was filed on August 22, 2023 and assigned to solely the undersigned pursuant 18 to Appendix A of the Local Rules. (ECF Nos. 1, 3.) Plaintiffs were issued summons, an initial 19 scheduling order, and a consent form. (ECF Nos. 1, 2, 3.) 20 Under the initial scheduling order, plaintiffs were required to serve defendant within 90 21 days, and by 10 days after, “file with the Clerk a certificate reflecting such service.” (ECF No. 3 22 at 2.) This is also required by Rule 4 of the Federal Rules of Civil Procedure: 23 If a defendant is not served within 90 days after the complaint is 24 filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that 25 defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must 26 extend the time for service for an appropriate period. 27 Fed. R. Civ. P. 4(m). On December 6, 2023, this court ordered plaintiff to file a statement 28 with the court indicating the status of service. (ECF No. 4.) Plaintiff was cautioned that failure to 1 | comply with the court’s order within fourteen days would result in dismissal of plaintiffs case 2 || without prejudice. (Id.) The relevant deadlines have now passed, and plaintiff has not filed proof 3 || of service with the court or otherwise shown good cause for the lack of service. 4 If a defendant is not served by the deadline, the court—on motion or on its own after 5 || notice to the plaintiff—must dismiss the action without prejudice against that defendant or order 6 || that service be made within a specified time. Fed. R. Civ. P. 4(m). Here, the court has ordered 7 || plaintiff to show proof of service and plaintiff has failed to comply. Accordingly, the 8 || undersigned recommends that this action be dismissed without prejudice. 9 ORDER 10 1. The Clerk of Court is directed to randomly assign a district judge to this matter. 11 FINDINGS AND RECOMMENDATIONS 12 Further, IT IS HEREBY RECOMMENDED that 13 1. Plaintiffs’ claims be DISMISSED WITHOUT PREJUDICE; and 14 2. The Clerk of Court be directed to CLOSE this case; and 15 These findings and recommendations are submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within fourteen (14) 17 || days after being served with these findings and recommendations, plaintiffs may file written 18 || objections with the court. Such a document should be captioned “Objections to Magistrate 19 || Judge’s Findings and Recommendations.” Plaintiffs are advised that failure to file objections 20 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 21 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 22 | 1991). 23 | Dated: January 30, 2024 / □□□ / 4 [iy ai CAROLYNK. DELANEY 25 UNITED STATES MAGISTRATE JUDGE 26 || 21, colv.1787 27 28