UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
November 9, 2012
ISIAH JENNINGS, PLAINTIFF,
TEMECULA VALLEY UNIFIED SCHOOL DISTRICT, DOES 1-5, DEFENDANTS.
The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
ORDER DISMISSING COMPLAINT FOR FAILURE TO PROSECUTE
On February 6, 2012, Plaintiff Isiah Jennings filed a Complaint (Doc. No. 1), naming as Defendant Temecula Valley Unified School District. Plaintiff has not filed a proof of service of the Complaint. Federal Rule of Civil Procedure 4(m) requires a defendant to be served within 120 days after the complaint is filed. More than 120 days have passed since Plaintiff filed their Complaint.
Federal Rule of Civil Procedure 41(b) provides, in pertinent part:
For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule . . . operates as an adjudication upon the merits.
Fed. R. Civ. P. 41(b).
"It is also true that, whereas the plain language of Rule 41(b) suggests that such dismissals may only result from a defendant's motion, . . . the consensus among our sister circuits, with which we agree, is that courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances." Hells Canyon Preservation Council v. United States Forest Service, 403 F.3d 683, 689 (9th Cir. 2005).
Accordingly, the Court DISMISSES without prejudice the Complaint for failure to prosecute.
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