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Michael B. Mcardle v. U.S. Bank National Association et al

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


March 21, 2012

MICHAEL B. MCARDLE, PLAINTIFF,
v.
U.S. BANK NATIONAL ASSOCIATION ET AL., DEFENDANTS.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21). See 28 U.S.C. § 636(b)(1).

The court's October 24, 2011 order setting status conference, issued to plaintiff along with the process papers, directed plaintiff to complete service of process on defendants within 120 days, i.e. by February 21, 2012. (Dkt. No. 3 at 1.) Plaintiff was cautioned that the action may be dismissed if service of process is not accomplished within 120 days from the date that the complaint is filed. (Id.); see also Fed. R. Civ. P. 4(m). The court's October 24, 2011 order also set a status conference for March 21, 2012 at 10:00 a.m. (Dkt. No. 3 at 2.) It further ordered the parties to file status reports addressing various matters not later than fourteen (14) days prior to the status conference, i.e. by March 7, 2012. (Dkt. No. 3 at 2-3.) Additionally, the order cautioned that "[f]ailure to comply with the Federal Rules of Civil Procedure or Local Rules of Practice for the United States District Court, Eastern District of California, or orders of this court, may result in dismissal of this action. Even parties without counsel will be expected to comply with the procedural rules." (Dkt. No. 3 at 2.)

There has been no docket activity since the complaint was filed on October 20, 2011 and the process papers issued on October 24, 2011. In disregard of the court's previous order, no party appeared at the March 21, 2012 status conference and no status reports were filed. This suggests that the defendants have not been served with process in this matter and that plaintiff has effectively abandoned prosecution of this case. Therefore, the undersigned will recommend that the action be dismissed with prejudice pursuant to Fed. R. Civ. P 41(b) based on plaintiff's failure to prosecute the action and to comply with court orders.

Accordingly, for the foregoing reasons, IT IS HEREBY RECOMMENDED that:

1. This action be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b), based on plaintiff's failure to prosecute the action and to comply with court orders; and

2. The Clerk of Court 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 (14) 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." Any reply to the objections shall be served and filed within seven (7) days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20120321

© 1992-2012 VersusLaw Inc.



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