Case Information
*1 Case 4:05-cv-00688-FRZ Document 9 Filed 04/20/06 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA The Parts Place, Inc., ) ) ) ) ) ) No. CV05-688-TUC-JCG
Plaintiff,
REPORT & RECOMMENDATION vs.
Memory Lane Muscle Cars, ) ) ) )
Defendant.
___________________________________
Plaintiff's Complaint (Doc. No. 1) was filed on November 17, 2005. On November 17, 2005, the Court issued a summons for Defendant (Doc. No. 2). This matter was originally assigned to Magistrate Judge Guerin. Because the parties have not consented to magistrate jurisdiction, Judge Guerin has prepared a report and recommendation which is now submitted to a District Court Judge chosen by lot under the Clerk's direction – the Honorable Frank R. Zapata. The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order dismissing the lawsuit without prejudice.
SUMMARY OF THE CASE:
On March 24, 2006, Judge Guerin issued an Order to Show Cause granting Plaintiff twenty days in which to show cause why this matter should not be dismissed for failure to effect service on Defendant. The deadline for Plaintiff to show cause was April 13, 2006 (Doc. No. 6).
On April 17, 2006, Judge Guerin's chambers received in the mail a letter from Page 1 of 2
*2 Case 4:05-cv-00688-FRZ Document 9 Filed 04/20/06 Page 2 of 2 Plaintiff's counsel dated April 14, 2006. The letter stated that Plaintiff's counsel had been unable to conform to ECF filing requirements by April 13, 2006, and that Plaintiff was therefore unable to file a response to the Court's order. Enclosed with the letter was a memorandum explaining that service could not be timely made on Defendant because its President (who was also the sole owner and operator) had passed away. The memorandum requested a sixty-day extension in order for Plaintiff to either determine the proper avenue to obtain service on Defendant or to dismiss the case. The letter stated that the memorandum would be filed with the Court on April 17, 2006. A review of the record, however, indicates that the memorandum was never filed. In addition, the memorandum which was sent to the Court does not detail any effort to serve the Defendant or explain the failure to request an extension of time for service before the expiration of the deadline. Accordingly, Plaintiff has filed to timely show cause why this case should not be dismissed for failure to serve.
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order
DISMISSING WITHOUT PREJUDICE pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within 10 days after being served with a copy of this Report and Recommendation. If objections are not timely filed, they may be deemed waived. The parties are advised that any objections filed are to be identified with the following case number: No. CV05-688-TUC-FRZ.
DATED this 19 th day of April, 2006.
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