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Cruz v. Ty Kharazi

United States District Court, E.D. California

September 23, 2019

FRANK CRUZ, Plaintiff,
v.
H. TY KHARAZI, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION BE DISMISSED FOR FAILURE TO SERVE AND FAILURE TO COMPLY (ECF NO. 25)

         I. BACKGROUND

         On May 6, 2019, Frank Cruz (“Plaintiff”) filed this action against H. Ty Kharazi, Yarra Law Group, Mel Abdelaziz, County of Fresno, Margaret Mims, and J. Puente alleging that they posted a notice to vacate on his real property. (ECF No. 1.) .) On May 28, 2019 Plaintiff filed a first amended complaint. (ECF No. 4.) The filing fee was paid in this action on July 7, 2019 and the summonses and new case documents issued on June 11, 2019. (ECF Nos. 8, 9.) On June 24, 2019, Defendants Abdelaziz, the Yarra Law Group, and Kharazi filed a motion to dismiss that was granted on August 7, 2019. (ECF No. 17.) Defendants Abdelaziz, the Yarra Law Group, and Kharazi have been dismissed from this action.

         On September 12, 2019, an order was filed requiring Plaintiff to file a notice of the status of service on Defendants County of Fresno, Margaret Mims, and J. Puente (collectively Defendants”) the only defendants remaining in the action. More than five days have passed and Plaintiff has not filed a notice of the status of service on the Defendants nor otherwise responded to the September 12, 2019 order.

         II.

         DISCUSSION

         A. Failure to Serve Summons and Complaint

          The order setting the mandatory scheduling conference in this action informed Plaintiff that he was to “diligently pursue service of the summons and complaint” and “promptly file proofs of the service.” (ECF No. 9 at 1.) Plaintiff was referred to Rule 4 of the Federal Rules of Civil Procedure regarding the requirement of timely service of the complaint. (Id. at 1-2.) Further, Plaintiff was advised that “[f]ailure to comply may result in the imposition of sanctions, including dismissal of unserved Defendants.” (Id. at 2.) No returns of service have been filed in this action.

         Rule 4(m) of the Federal Rules of Civil Procedure addresses the time requirements for service of the complaint in civil cases. Rule 4(m) provides:

If a defendant is not served within 90 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.

         On September 12, 2019, an order issued requiring Plaintiff to file a notice of the status of service in this action. Plaintiff’s failure to respond to the order requiring him to notify the Court of the status of service in this matter leads the Court to conclude that Plaintiff has not effected service as required by Rule 4(m) on the defendants remaining in this action. Fort this reason, the Court recommends that this action be dismissed for Plaintiff’s failure to serve.

         B. Failure to Comply

         Plaintiff has failed to respond to the Court’s September 12, 2019 order requiring him to notify the Court of the status of service on Defendants County of Fresno, Margaret Mims, and J. Puente. Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” The Court has the inherent power to control its docket and may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). The Court recommends the imposition of sanctions due to Plaintiff’s failure to respond to the Court’s September 12, 2019 order.

         A court may dismiss an action based on a party’s failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules).

         “In determining whether to dismiss an action for lack of prosecution, the district court is required to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.’ ” Carey, 856 F.2d at 1440 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). These factors guide a court in deciding what to do, and are not conditions that ...


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