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Wang v. City and County of San Francisco

United States District Court, N.D. California

March 6, 2015

LIN WANG, and FEN YING YIN, Plaintiffs,
v.
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATIONS

SAMUEL CONTI, District Judge.

Plaintiffs Lin Wang and Fen Ying Yin filed this action on August 4, 2014, bringing an array of tort claims apparently arising out of their allegedly wrongful arrest and detainment (though the complaint is far from clear and rather short of details). See ECF No. 1 ("Compl."). The case was assigned to Magistrate Judge James. On October 31, 2014, Judge James vacated the case management conference scheduled for November 6 because there was no indication that any defendant had been served. See ECF No. 5. Judge James ordered Plaintiffs to file a status report by November 13. Plaintiffs never filed anything, and, on November 19, Judge James ordered Plaintiffs to show cause why the action should not be dismissed for failure to prosecute. See ECF No. 6. Plaintiffs filed a declaration in response, explaining that the failure to serve Defendants was the result of confusion and staffing changes, and that Plaintiffs expected Defendants to acknowledge service within a week. See ECF No. 7 ¶¶ 10-15. Seven weeks later, Defendants had still not been served. On January 20, 2015, Judge James again ordered Plaintiffs to show cause why the action should not be dismissed for failure to prosecute and to comply with court deadlines. See ECF No. 9. Plaintiffs were ordered to show cause by January 27, 2015, but they did not file any response to the order. Accordingly, Judge James issued a report and recommendation on February 2 recommending that this case be dismissed without prejudice. ECF No. 10 ("Magistrate Rpt.").

Objections to Judge James's report and recommendation were due on February 17. On February 17, Plaintiff Lin Wang filed an objection to the report. ECF No. 13 ("Pl.'s Obj."). Ms. Wang's objection specified that her counsel had been "working to serve Defendants through counsel" and was waiting for Defendants to acknowledge receipt of service. Pl.'s Obj. ¶ 13.

It is now more than two weeks after Ms. Wang filed her objection. The record still does not indicate that any defendant has been served.[1] Seven months have passed since Plaintiffs filed this action, and almost four months have passed since Judge James first ordered Plaintiffs to show cause. Plaintiffs have had more than an adequate opportunity to serve Defendants, but they have consistently failed to do so, and they have failed to comply with court orders. Despite their protestations to the contrary, there is no indication of Plaintiffs' efforts to serve Defendants in the weeks following their objection. Accordingly, the Court OVERRULES Plaintiff Lin Wang's objection to Judge James's report. The Court adopts Judge James's report and recommendation. This matter is DISMISSED WITHOUT PREJUDICE. Plaintiffs may refile their case if and when they are prepared to prosecute it and to abide by court orders and deadlines.

IT IS SO ORDERED.


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