Barton v. Now Foods Inc., et al, No. 1:2017cv01222 - Document 7 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Action be DISMISSED Without Prejudice for Failure to Serve Summons and Complaint in Compliance With Rule 4 of the Federal Rules of Civil Procedure re 1 signed by Magistrate Judge Erica P. Grosjean on 5/24/2018. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DONALD BARTON, Case No. 1:17-cv-1222-LJO-EPG Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS THE ACTION WITHOUT PREJUDICE FOR FAILURE TO SERVE SUMMONS AND COMPLAINT IN COMPLIANCE WITH RULE 4 OF THE FEDERAL RULES OF CIVIL PROCEDURE 10 v. 11 NOW FOODS, INC., et al., 12 Defendants. 13 (ECF Nos. 1, 6) 14 FOURTEEN (14) DAY DEADLINE 15 16 Donald Barton (“Plaintiff”) commenced this product liability action by the filing of a 17 Complaint on September 11, 2017. (ECF No. 1). The Court issued summonses as to Richard 18 Elwood, Jim Emme, Now Foods Inc., and Whole Foods-FRS (“Defendants”) on September 11, 19 2017. (ECF No. 2). 20 On February 12, 2018, the Court held a telephonic status conference. (ECF No. 6). 21 Plaintiff advised the Court regarding the status of service on Defendants, and the Court set a 22 new deadline to complete service of process of April 6, 2018. Id. 23 24 Rule 4(l) of the Federal Rules of Civil Procedure provides, in relevant part, “Unless service is waived, proof of service must be made to the court.” Furthermore, Rule 4(m) 25 provides, in pertinent part: 26 27 28 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 without prejudice against that 1 defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 1 2 More than 90 days have elapsed since the filing of the complaint in this action, and the 3 court-ordered extended deadline for service of process has expired. To date, Plaintiff has failed 4 to file proof of service of the summons and complaint upon the defendants in compliance with 5 Federal Rules of Civil Procedure 4(l), and the defendants have not appeared in this action. 6 Accordingly, the Court RECOMMENDS that this action be dismissed without prejudice. 7 These findings and recommendations will be submitted to the United States District 8 Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 9 fourteen (14) days after being served with a copy of these findings and recommendations, any 10 party may file written objections with the Court and serve a copy on all parties. Such a 11 12 document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed within seven (7) days 13 after service of the objections. 14 Failure to file objections within the specified time may result in the waiver of rights on 15 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (quoting Baxter v. Sullivan, 16 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. 19 20 Dated: May 24, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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