Opinion
No. CV-17-08085-PCT-BSB
10-02-2018
Joyce Garrett, Plaintiff, v. Johnnye L Woodle, et al., Defendants.
REPORT AND RECOMMENDATION
This matter is before the Court on its own review. On May 3, 2017, Plaintiff filed this action against Defendants Johnnye E. Woodle, Lloyd H. Woodle, and Specialized Services, Inc. (Doc. 1.) The Complaint also named unidentified Defendants ABC Partnerships I-X; XYZ Corporations I-X, John Does I-X, and Jane Does I-X. (Id.)
Defendants Johnnye Woodle, Lloyd Woodle, and Specialized Transportation, Inc. filed an answer to the Complaint. (Doc. 13.) On November 16, 2017, the Court issued a Case Management Order. (Doc. 25.) That order directed that "motions to join parties or for leave to amend pleadings shall be filed within sixty days of [the November 16, 2017] Order." (Id. at 2.) The deadline for joining parties or amending pleadings has passed and Plaintiffs have not provided the identities of the unidentified Defendants. Additionally, the deadline for serving those Defendants has expired, but there is no evidence on the docket indicating that Plaintiffs have served them. See Fed. R. Civ. P. 4(m).
On September 20, 2018, the Court ordered Plaintiff to show cause by October 1, 2018 why their claims against Defendants ABC Partnerships I-X; XYZ Corporations I-X, John Does I-X, and Jane Does I-X should not be dismissed without prejudice for failure to serve. To date, Plaintiff has not responded to the Court's order to show cause.
Accordingly,
IT IS RECOMMENDED that the Court dismiss without prejudice Defendants ABC Partnerships I-X; XYZ Corporations I-X, John Does I-X, and Jane Does I-X pursuant to Rule 41(b). See Alexander v. Pac. Maritime Ass'n, 434 F.2d 281 (9th Cir. 1970) ("It is well settled in this circuit that a district court has the power to dismiss an action for want of prosecution on its own motion, both under Rule 41(b), and under its local rule, or even in the absence of such rules.") (citations omitted).
IT IS FURTHER ORDERED that the Clerk of Court shall refer this Report and Recommendation to the Honorable Stephen M. McNamee in accordance with General Order 18-20.
Because not all parties have been served or consented to magistrate judge jurisdiction, the assigned magistrate judge lacks jurisdiction to dismiss the unidentified and unserved Defendants and therefore issues this Report and Recommendation to a United States District Judge. See Williams v. King, 875 F.3d 500, 504 (9th Cir. 2017) (holding that the absence of consent from unserved defendants deprived the magistrate judge of jurisdiction to dismiss the complaint); see also 28 U.S.C. § 636(c).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
Dated this 2nd day of October, 2018.
/s/_________
Bridget S. Bade
United States Magistrate Judge