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Malik Reed v. Wells Fargo Home Mortgage Inc.; First American Loanstar Trustee

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


April 4, 2011

MALIK REED, PLAINTIFF,
v.
WELLS FARGO HOME MORTGAGE INC.; FIRST AMERICAN LOANSTAR TRUSTEE SERVICES; NEW CENTURY MORTGAGE CORPORATION; AND US BANK NATIONAL ASSOCIATION, DEFENDANTS.

FINDINGS AND RECOMMENDATIONS

This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). On February 8, 2011, the district judge adopted the undersigned's recommendation that defendants First American Trustee Servicing Solutions, LLC, f/k/a First American Loanstar Trustee Services, LLC and Wells Fargo Home Mortgage, Inc.'s dismissal motions be granted, and dismissed plaintiff's complaint without leave to amend as to those defendants. Dckt. No. 37.

Then, on March 9, 2011, because the docket revealed that the only remaining defendants, New Century Mortgage Corporation and U.S. Bank National Association, had not yet been properly served, the undersigned ordered plaintiff to show cause, on or before March 23, 2011, "why New Century Mortgage Corporation and/or U.S. Bank National Association should not be dismissed, and as a result, this case be dismissed in its entirety, for failure to effect service of process within the time prescribed by Rule 4(m)." Dckt. No. 38 at 2. The order to show cause further provided that "[f]ailure of plaintiff to comply with this order may result in a recommendation that New Century Mortgage Corporation, U.S. Bank National Association, and/or this action be dismissed for failure to follow court orders, for failure to effect service of process within the time prescribed by Rule 4(m), and/or for lack of prosecution under Rule 41(b)." Id. at 3.

Although the deadline has now passed, the court docket reflects that plaintiff has not filed a response to the order to show cause and has not shown that service of process has been properly effected on either New Century Mortgage Corporation or U.S. Bank National Association. Although this action could also be dismissed under Rule 4(m), in light of plaintiff's failure to respond to the order to show cause, the undersigned will recommend that this action be dismissed for failure to follow court orders and for lack of prosecution under Rule 41(b). See Fed. R. Civ. P. 41(b); L.R. 110.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on plaintiff's failure to prosecute the action and to comply with court orders; and

2. The Clerk be directed to close this case.

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 fourteen 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).

20110404

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