(PS) Al Azzawi v. Department of the Army et al, No. 2:2015cv01138 - Document 13 (E.D. Cal. 2015)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/19/15 ORDERING that the 10/28/15 status conference is VACATED and will be reset as necessary and RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Garland E. Burrell, Jr.; Objections to these F&Rs due within 14 days. (Benson, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WAMEEDH AL AZZAWI, 12 Plaintiff, 13 14 15 v. No. 2:15-cv-1138 GEB CKD PS ORDER AND DEPARTMENT OF THE ARMY, et al., FINDINGS AND RECOMMENDATIONS Defendants. 16 17 This action was referred to the undersigned pursuant to Local Rule 302(c)(21). As 18 provided by Federal Rule of Civil Procedure 4(m), the court may dismiss an action where service 19 of summons is not made within 120 days after the filing of the complaint. In the order setting 20 status conference, filed May 27, 2015, plaintiff was cautioned that this action may be dismissed if 21 service was not timely completed. This action was filed May 27, 2015 and plaintiff has not yet 22 served defendants with summons in compliance with the Federal Rules of Civil Procedure. 23 Because plaintiff had not properly completed service of summons in this action, plaintiff 24 was ordered to serve defendants in compliance with Federal Rule of Civil Procedure 4(i)(1)(A) 25 (service of summons and complaint on the United States Attorney for the district where the action 26 is brought required under Rule 4). Plaintiff was ordered to complete said service no later than 27 September 11, 2015. ECF No. 6. By order filed September 14, 2015, plaintiff was again ordered 28 to serve defendants in compliance with Federal Rule of Civil Procedure 4 and to do so no later 1 1 than October 1, 2015. ECF No. 8. Because plaintiff failed to comply with the court’s order, 2 plaintiff was ordered to show cause no later than October 15, 2015 why this action should not be 3 dismissed for failure to properly serve summons in this action. ECF No. 11. In the order to show 4 cause, the court specifically noted that “[P]laintiff has not yet completed proper service in that 5 the instant action has been brought in the Eastern District of California and the docket does 6 not reflect that the United States Attorney for this District has been properly served with 7 summons and the complaint.” ECF No. 11 at 1:24-27 (emphasis in original). 8 9 Plaintiff has filed several executed returns of summons which indicate service on several United States Attorney’s offices. ECF Nos. 5, 7, 9, 12. However, none of those returns 10 demonstrate that plaintiff has completed proper service in that the instant action has been brought 11 in the Eastern District of California and the United States Attorney for this District has not yet 12 been properly served with summons and the complaint. Despite repeated admonitions to plaintiff 13 that service of summons has not been properly effectuated, and despite the court’s clear 14 instruction to plaintiff that he must serve the United States Attorney for the Eastern District of 15 California, as required under Federal Rule of Civil Procedure 4(i)(1)(A), plaintiff continues to 16 serve United States Attorneys in other districts.1 The court’s orders could not be clearer. At this point, it appears plaintiff, for whatever 17 18 reasons, cannot properly serve defendants with summons. In addition, plaintiff has failed to 19 timely file the status report required under the order setting status conference. ECF No. 3. 20 Because plaintiff has failed to timely serve summons and properly prosecute this action, the court 21 will recommend that the action be dismissed. 22 23 Accordingly, IT IS HEREBY ORDERED that the status conference set for October 28, 2015 is vacated and will be reset as necessary; and 24 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 28 1 Plaintiff has also been informed by at least one United States Attorney’s Office that he must serve the United States Attorney for the Eastern District of California. ECF No. 10 at 3-4. 2 1 after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Findings and Recommendations.” Any reply to the objections shall be served and 4 filed within ten days after service of the objections. The parties are advised that failure to file 5 objections within the specified time may waive the right to appeal the District Court's order. 6 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 Dated: October 19, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 8 9 10 11 4 azzawi1138.4m.57 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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