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Jeffrey A. Rosenberg v. Michael Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


September 28, 2012

JEFFREY A. ROSENBERG,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

BACKGROUND

Plaintiff, proceeding in forma pauperis, filed a "Complaint for Judicial Review of Decision of Commissioner of Social Security" on May 14, 2012. On May 31, 2012, the Court ordered service of the Summons and Complaint by the United States Marshal. The Marshal subsequently reported an inability to serve the Summons and Complaint using the documents and information provided by Plaintiff. On July 12, 2012, the Court ordered that Plaintiff show cause within thirty (30) days, if there be any, why the action should not be dismissed for failure to prosecute. Plaintiff failed to comply with this Order within the allotted time.

DISCUSSION

This action should be dismissed without prejudice for failure to effect timely service of process and for failure to prosecute.

Under Rule 4(m) of the Federal Rules of Civil Procedure, a court may dismiss an action without prejudice if the summons and complaint are not served on the defendants within 120 days after filing the complaint or such further time as ordered by the court. See Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). A pro se plaintiff in forma pauperis is entitled to rely upon the United States Marshals Service to effect proper service. See Pruett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). However, it is the plaintiff's responsibility to provide the Marshals Service with information necessary to identify each defendant to be served. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other grounds, Sandin v. Conner, 515 U.S. 472 (1995); Brush v. Harper, 2009 WL 256380, at *1 (E.D. Cal. Feb. 3, 2009), adopted by 2009 WL 902265 (E.D. Cal. Apr. 1, 2009); Schrubb v. Tilton, 2009 WL 113022, at *2 (N.D. Cal. Jan. 16, 2009). It appears that Plaintiff has failed to provide the Marshals Service with information sufficient to effect timely service of process on the Defendants.

Rule 4(m) requires the Court to extend the time for service if a plaintiff shows good cause for the failure to serve. "At a minimum, 'good cause' means excusable neglect." Bourdette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). Here, Plaintiff has not shown any good cause for the failure of service.

A court has "broad discretion" to extend the time for service under Rule 4(m), even absent a showing of good cause. See Efaw v. Williams, 473 F.3d at 1040-41; see also United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 773 (9th Cir. 2004) (Rule 4(m) gives courts "leeway to preserve meritorious lawsuits despite untimely service of process"). A court may consider various factors including prejudice to the defendant, actual notice, a possible limitations bar, and eventual service. Efaw v. Williams, 473 F.3d at 1041. Any such dismissal should be without prejudice. See id. at 772.

Here, the record shows no basis for extending the time for service. To the contrary, Plaintiff's failure timely to respond to the order to show cause suggests that extending the time for service would be an idle act. Accordingly, dismissal without prejudice is appropriate. Id.; see Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), abrogated on other grounds, Sandin v. Conner, 515 U.S. 472 (1995) (it is the plaintiff's responsibility to provide the Marshals Service with sufficient information with which to effect service); accord Brush v. Harper, 2009 WL 256380, at *1; Schrubb v. Tilton, 2009 WL 133022, at *2.

The action also should be dismissed for failure to prosecute. Plaintiff has failed to file a timely response to the order to show cause, despite having been warned that such failure may result in the dismissal of the action. The Court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. See Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962).

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the action without prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

20120928

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