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Gabales v. State

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 23, 2009

THEODORE GABALES, PLAINTIFF,
v.
STATE OF CALIFORNIA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge

ORDER

On May 15, 2009, this court recommended that the action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. The basis for the recommendation was plaintiff's failure to file an opposition to defendant Stephens' motion to dismiss. Plaintiff has not filed objections to those findings and recommendations but on May 29, 2009, he filed a letter to the court indicating that his process server has been unable to serve the remaining defendants because they have "blatantly avoided service." During attempts at service, the process server has been informed that the defendants were either "no longer working for the State of California, were unavailable, on vacation, could not be contacted or the process servers were redirected to erroneous other places of business." (Dkt. # 11 at 1-2.) As a result, plaintiff claims it has been impossible for him to complete service of process within 120 days.

Based on plaintiff's representations, the court has reconsidered its findings and recommendations. Rather than dismiss the entire action, the court will recommend dismissing only defendant Stephens at the present time. Plaintiff has never opposed Stephens' motion to dismiss, and did not file objections to the court's May 15, 2009 findings and recommendations. The recommended dismissal will be withdrawn as to the remaining unserved defendants, however, subject to a later order.

In regard to plaintiff's letter regarding inability to serve process, plaintiff will be required to submit a declaration by the process server(s) regarding any attempts to serve defendants "State of California EDD," Bunnell and Sanford, and inability to serve process. The declaration shall also include a request for substituted service and the manner requested.

For the reasons stated herein, IT IS ORDERED that: 1. The findings and recommendations filed May 15, 2009, are vacated as to non-moving defendants State of California EDD, Bunnell and Sanford. The findings and recommendations as to defendant Stephens are not affected.

2. Within 21 days of this order, plaintiff shall file a declaration by his process server which outlines attempts to serve the remaining defendants without success, and requests substituted service with the manner of service specified.

20090623

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