-DAD (PS) Phillips v. Washington Mutual Bank FA, No. 2:2011cv00089 - Document 6 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS, recommending that this action be dismissed without prejudice for failure to effect service w/in time specified, failure to comply with 1/24/2011 Order, and failure to prosecute action in any manner, signed by Magistrate Judge Dale A. Drozd on 5/20/2011. Within 14 days after being served with these F/Rs, plaintiff may file written Objections with Court. (Marciel, M)
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-DAD (PS) Phillips v. Washington Mutual Bank FA Doc. 6 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LESLEY E. PHILLIPS, 11 Plaintiff, 12 No. CIV S-11-0089 JAM DAD PS v. 13 WASHINGTON MUTUAL BANK FA, 14 Defendant. FINDINGS AND RECOMMENDATIONS 15 / 16 On January 10, 2011, plaintiff, proceeding pro se, filed a complaint and paid the 17 required filing fee. The Clerk of the Court issued a summons as to defendant Washington 18 Mutual Bank FA. On January 24, 2011, the court filed and served on plaintiff an order setting a 19 status conference before the undersigned on May 20, 2011. When the status conference was held 20 on May 20, 2011, no appearance was made by or on behalf of plaintiff or defendant. 21 By the January 24, 2011 order, plaintiff was cautioned that Federal Rule of Civil 22 Procedure 4(m) “provides that a defendant must be dismissed if service of process is not 23 accomplished on that defendant within 120 days from the date the complaint is filed.” (Order 24 (Doc. No. 4) at 3.) Here, the 120-day period for service of process began to run on January 11, 25 2011, and expired on May 10, 2011. Plaintiff has not filed evidence that service of process was 26 ///// 1 Dockets.Justia.com 1 accomplished on the defendant by May 10, 2011, and the defendant has not appeared in this 2 action. 3 Plaintiff failed to comply with the court’s January 24, 2011 order in additional 4 ways. Plaintiff did not file a certificate of service indicating the date and manner of service of 5 the January 24, 2011 order upon defendant, and plaintiff did not file a status report on or before 6 May 6, 2011. Plaintiff was advised that failure to file a timely status report or failure to appear at 7 the status conference “may result in a recommendation that this case be dismissed for lack of 8 prosecution and as a sanction for failure to comply with court orders and applicable rules.” (Doc. 9 No. 4 at 3.) 10 Accordingly, IT IS RECOMMENDED that this action be dismissed without 11 prejudice for failure to effect service within the time specified in Rule 4(m) of the Federal Rules 12 of Civil Procedure, for failure to comply with the requirements of the court’s order filed January 13 24, 2011, and for failure to prosecute this action in any manner. 14 These findings and recommendations will be submitted to the United States 15 District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 16 fourteen (14) days after being served with these findings and recommendations, plaintiff may file 17 written objections with the court. A document containing objections should be titled “Objections 18 to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 19 objections within the specified time may waive the right to appeal the District Court’s order. See 20 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 DATED: May 20, 2011. 22 23 24 25 DAD:kw Ddad1\orders.pro se\phillips0089.rule4m.dlop.f&r 26 2