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Tiffany Marie Pierce v. Michael Astrue

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


August 7, 2012

TIFFANY MARIE PIERCE, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER and FINDINGS AND RECOMMENDATIONS

Plaintiff filed her complaint and paid the applicable filing fee on August 21, 2011.*fn1 The court issued a summons and Scheduling Order on August 23, 2011, and the Scheduling Order provides: "Except when other provision is made pursuant to an application to proceed in forma pauperis, within 21 days from the filing of the complaint, plaintiff shall complete service of process and shall serve a copy of this scheduling order on defendant. Within fourteen days after completing service of process, plaintiff shall file with the clerk a certificate reflecting such service." (Scheduling Order at 2, Dkt. No. 6.) Additionally, Federal Rule of Civil Procedure 4(m) requires that a plaintiff serve the summons and complaint within 120 days after filing his or her complaint.*fn2

The court's docket reflects that plaintiff has not served defendant with the summons and complaint, or taken any other action in this case since issuance of the summons and Scheduling Order in August 2011. Accordingly, it appears that plaintiff has abandoned her case, and the undersigned recommends that plaintiff's case be dismissed without prejudice pursuant to the court's Scheduling Order and Federal Rule of Civil Procedure 4(m), for failure to serve the complaint and summons for nearly one year.

For the foregoing reasons, IT IS HEREBY ORDERED that the Clerk of Court randomly select and assign a United States District Judge to this case.

It is FURTHER RECOMMENDED that:

1. This case be dismissed without prejudice pursuant to this court's Scheduling Order and Federal Rule of Civil Procedure 4(m) for failure to timely serve the summons and complaint on defendant.

2. The Clerk of Court be directed to vacate all dates and 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)(1). 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. Id.; see also E. Dist. Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). 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, 1156-57 (9th Cir. 1991).

IT IS SO ORDERED and RECOMMENDED.


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