United States District Court, E.D. California
October 17, 2014
SONG WENFO, Plaintiff,
BARACK OBAMA, President of the United States, Defendant.
ORDER AND FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Plaintiff, proceeding pro se, commenced this action on May 30, 2014, by filing a complaint and paying the required filing fee. The Clerk has issued summons and the case has been referred to the undersigned pursuant to Local Rule 302(c)(21).
The matter came before the court on October 10, 2014, for a Status (Pretrial Scheduling) Conference. (Dkt. No. 12.) Plaintiff Wenfo Song appeared on his own behalf. No appearance was made by, or on behalf of, the defendant. Review of the court's docket, however, finds no evidence that the named defendant was properly served.
Rule 4(m) of the Federal Rules of Civil Procedure provides 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.
FED. R. CIV. P. 4(m).
Accordingly, at the October 10, 2014 hearing the undersigned inquired of plaintiff as to why the named defendant had not been properly served and whether plaintiff could properly serve the defendant if provided additional time. Plaintiff answered that providing him additional time to research the issue would be futile because, according to plaintiff, if he researched the issue in a book or on the internet someone would edit the book or website to provide plaintiff with the wrong information. In light of those representations, it is clear to the undersigned that plaintiff cannot show good cause for his failure to serve the defendant and that extending the time for service would be futile.
Accordingly, IT IS ORDERED that plaintiff's August 28, 2014 motion (Dkt. No. 10) is denied without prejudice.
It is also HEREBY RECOMMENDED that plaintiff's June 12, 2014 complaint (Dkt. No. 1) be dismissed without prejudice for failure to comply with Rule 4(m) of the Federal Rules of Civil Procedure.
These findings and recommendations will be 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 (14) days after being served with these findings and recommendations, plaintiff may file written objections with the court. A document containing objections should be titled "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may, under certain circumstances, waive the right to appeal the District Court's order. See Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).