IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 19, 2013
OCTAVIO ZAVALA, PLAINTIFF,
BANK OF NEW YORK MELLON TRUST, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff paid the filing fee and is proceeding pro se with a complaint filed on August 17, 2012. The Clerk issued a summons to the two named defendants, Bank of New York Mellon Trust and Bank of America, also on August 17, 2012. Federal Rule of Civil Procedure 4(m) states that:
If a defendant is not served within 120 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).
On February 5, 2013, after more than 120 days had passed since the complaint was filed and the summons issued, the court ordered plaintiff to show cause within fourteen days why this action should not be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m) for plaintiff's failure to serve the defendants with the complaint within 120 days. To date, plaintiff has not responded to the court's order to show cause.
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m) for plaintiff's failure to serve the complaint within 120 days.
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, plaintiff 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." Plaintiff is advised that 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).
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