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Udan v. GMAC Mortgage

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


August 6, 2009

EFREN R. UDAN, AND AURORA D. UDAN, PLAINTIFFS,
v.
GMAC MORTGAGE, LLC, ET AL., DEFENDANTS.

FINDINGS AND RECOMMENDATIONS

On June 5, 2009, this court ordered plaintiffs to show cause why they had not demonstrated service of process upon defendants or filed a status report.*fn1 Plaintiffs were accorded fifteen days within which to respond. That period has expired and plaintiffs have not shown cause, demonstrated service of process, filed a status report, or otherwise responded to the court's order. The docket does not indicate that the court's order was returned for failure of service, nor is there any other indication that plaintiffs may not have received the court's order.*fn2

Plaintiffs were informed by the court's order to show cause that, "[f]ailure to respond to this order, or to demonstrate timely service of process, shall be construed as a request for voluntary dismissal of this action." Dckt. No. 5, at p. 2. Federal Rule of Civil Procedure 41(a)(2) authorizes dismissal of an action, without prejudice, upon plaintiff's request, and plaintiffs' failure to respond to the court's order will be so construed.*fn3 See also E. D. Cal. L. R. 11-110 ("Failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court"); E. D. Cal. L. R. 83-183 ("Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure and by these Local Rules. All obligations placed on 'counsel' by these Local Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these Rules.").

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(a).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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