| 2002-01-29 |
6 |
0 |
Minutes - Miscellaneous |
EO :In the matter of FINDINGS AND RECOMMENDATION TO DISMISS, filed December 12, 2001. In reviewing a dispositive recommendation by a magistrate judge, the Court conducts a de novo review. Plaintiff failed to appear at the Rule 16 Scheduling Conference that was scheduled in this case for November 26, 2001. As a result, the Magistrate Judge, on November 27, 2001, issued an Order to Show Cause why sanctions should not be imposed. Plaintiff did not appear at the hearing, which was scheduled for December 11, 2001, at 9:30 a.m. The Magistrate Judge issued his FINDINGS AND RECOMMENDATION TO DISMISS on December 12, 2001. No objections were received within the time provided by Local Rule 74.2. The Court notes from its review of the file that both the Order to Show Cause and the FINDINGS AND RECOMMENDATION TO DISMISS were sent to Plaintiff by the Clerk's Office at the address Plaintiff provided on the first page of the Complaint. Both documents were returned undelivered with a notation stating that there is "NO MAIL RECEPTACLE" for that address. The Court also notes that the zip code listed on the front page of the Complaint is 96792, while the zip code listed on the summons is 96791. It does not appear, however, that a mistake in the zip code caused the documents to be undeliverable; the Postal Service was apparently able to find the address and conclude that it did not have a mailbox. Although the Court is reluctant to dismiss a case against a party who may not have had actual notice of the proposed dismissal, the documents were sent to Plaintiff at the address Plaintiff provided. It is Plaintiff's duty to provide a proper address to the Court. See Local Rule 10.2(b). Moreover, Plaintiff, at the time the Complaint was filed, would have received the Order Setting Rule 16 Scheduling Conference. That order specifically provided that failure to attend may result in sanctions, including the sanction of dismissal. Thus, Plaintiff had notice that failure to attend the Rule 16 Scheduling Conference could result in dismissal of the lawsuit. There is also no indication in the record that Plaintiff has served the Complaint on Defendant. Under Fed. R. Civ. P. 4(m), the Complaint should have been served by December 12, 2001. Plaintiff's failure to serve the Complaint, or to seek an extension of time in which to file it, is consistent with a lack of intention to prosecute or participate in this case. Based on the foregoing, this Court concludes that dismissal of the lawsuit without prejudice is proper. IT IS HEREBY ORDERED AND ADJUDGED that, pursuant to Title 28, United States Code, Section 636(b)(1) and Local Rule 74.2, the FINDINGS AND RECOMMENDATION TO DISMISS, filed December 12, 2001, is adopted as the opinion and order of this Court [5-1] ( Ct Rptr : ) JUDGE Judge Helen Gillmor (fe) |
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