Opinion
1:22-cv-00166-ADA-CDB
02-14-2023
FERNANDO GASTELUM, Plaintiff, v. EASINESS LP, Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DISMISSING WITHOUT PREJUDICE PLAINTIFF'S COMPLAINT (ECF No. 21)
Plaintiff Fernando Gastelum (“Plaintiff”), proceeding pro se, initiated this action against Defendant Easiness LP (“Defendant”) on February 8, 2022. (ECF No. 1.) The Court set an initial scheduling conference and advised Plaintiff he “shall diligently pursue service of summons and complaint...” (ECF No. 5.) On May 10, 2022, Plaintiff filed an affidavit describing a process server's unsuccessful attempt to serve Defendant and a deficient proof of service statement. (ECF Nos. 6-7.) Plaintiff filed an application for entry of default on June 9, 2022. (ECF No. 9.)
On June 30, 2022, the Honorable Magistrate Judge Erica P. Grosjean held a status conference and noted Plaintiff's request for entry of default did not comply with Federal Rule of Civil Procedure 55(a). (ECF No. 12.) Magistrate Judge Grosjean ordered Plaintiff to file a supplement to his request for an entry of default addressing the issues identified in the June 30, 2022, status conference, or to file a motion seeking an extension of time to serve Defendant. (Id. at 4.) On July 20, 2022, Plaintiff again filed a deficient proof of service statement. (ECF No. 13.)
On July 28, 2022, Magistrate Judge Grosjean issued findings and recommendations recommending that Plaintiff's application for an entry of default be denied without prejudice as Plaintiff's request did not comply with Federal Rule of Civil Procedure 55(a). (ECF No. 14.) Plaintiff did not file objections to the Court's findings and recommendations. This Court issued an order adopting in full the Court's findings and recommendations on September 1, 2022. (ECF No. 16).
The next day, Plaintiff filed a second request for entry of default. (ECF No. 17). On October 3, 2022, Magistrate Judge Grosjean issued findings and recommendations recommending that Plaintiff's second request for entry of default be denied and “only providing Plaintiff with one more opportunity to request for an entry of default judgment.” (ECF No. 18). Plaintiff did not file objections to the Court's findings and recommendations. This Court issued an order adopting in part the Court's findings and recommendations, denying without prejudice Plaintiff's second request for entry of default and ordering Plaintiff to properly serve Defendant by December 14, 2022, at risk of dismissal of the action. (ECF No. 20.) Plaintiff did not file a response or otherwise indicate intent to prosecute this case.
On December 19, 2022, the assigned Magistrate Judge issued findings and recommendations recommending this action be dismissed without prejudice for failure to properly serve Defendant, failure to prosecute and failure to comply with a court order. (ECF No. 21.) The findings and recommendations advised Plaintiff that he must file any objections within 21 days after service of the order and that the “failure to file objections within the specified time may waive the right to appeal the District Court's order.” (Id. at 3-4.) Plaintiff did not file objections or any other response to the findings and recommendations, and the deadline to do so has passed.
Pursuant to 28 U.S.C. § 636(b)(1)(C), and Local Rule 304, this Court conducted a de novo review of this case. Having carefully reviewed the entire matter, this Court concludes the findings and recommendations are supported by the record and by proper analysis.
Accordingly, 1. The December 19, 2022, findings and recommendations, (ECF No. 21), are adopted in full;
2. Plaintiff's complaint, (ECF No. 1), is dismissed without prejudice for failure to properly serve Defendant, failure to prosecute and failure to comply with a court order; and
3. The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.