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Johnson v. Doyle

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


September 29, 2009

SCOTT N. JOHNSON, PLAINTIFF,
v.
KIRK C. DOYLE, DEFENDANT.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER CONTINUING STATUS (PRETRIAL SCHEDULING) CONFERENCE

The caption of the status report Plaintiff filed on September 28, 2009, indicates Defendant Doyle is named as defendant in two capacities. However, Plaintiff only sought and obtained a Clerk's entry of default against defendant Doyle in his individual capacity. Since there is no indication in the record that Defendant Doyle has been served with process in his trustee capacity, even though Federal Rule of Civil Procedure 4(m) prescribes service should be within 120 days of the date on which the Complaint is filed (and this service period expired July 14, 2009), it is evident Plaintiff has abandoned his action against the trust. Therefore, the trust is dismissed because of Plaintiff's failure to prosecute the case against the trust, and the caption has been changed to reflect this dismissal.

Further, Plaintiff has thirty days from the date on which this order is filed to file a motion for default judgment against defendant, or on which Plaintiff shall file a document in which he explains why this action should not be dismissed for failure of prosecution.

No further service, joinder of parties or amendments to pleadings is permitted, except with leave of Court, good cause having been shown.

The status (pretrial scheduling) conference scheduled for October 5, 2009 is continued to March 11, 2010 at 9:00 a.m. Plaintiff shall file a status report not later than fourteen days prior to the March 11, 2010 scheduling conference, in which Plaintiff is only required to explain the status of the default motion, or alternatively, why this action should not be dismissed for failure of prosecution.

IT IS SO ORDERED.

20090929

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