United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS
ACTION BE DISMISSED FOR FAILURE TO SERVE AND FAILURE TO
COMPLY (ECF NO. 25)
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.
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.
Failure to Serve Summons and Complaint
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.
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.
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.
Failure to Comply
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.
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).
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 ...