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Freemen-Wheaton v. Texaco Corporation

United States District Court, W.D. Washington, Tacoma

January 23, 2014

A VERY CAMILLE FREEMEN-WHEATON, Plaintiff,
v.
TEXACO CORPORATION, CITY OF OLYMPIA, THURSTON COUNTY, AND KWANG SOO HONG, Defendants.

REPORT AND RECOMMENDATION

J. RICHARD CREATURA, Magistrate Judge.

This matter has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Rules MJR 1, MJR 3, and MJR 4. The matter is before the Court for initial review prior to ordering service of the complaint (ECF No. 1).

On December 3, 2013, the Court sent plaintiff a letter outlining the defects in his action (ECF No. 3). Plaintiff had not paid the filing fee or filed an application to proceed in forma pauperis. The Clerk's Office gave plaintiff until January 3, 2014 to cure the defects in his filings.

Plaintiff has not cured the defects or paid the filing fee. The Court recommends dismissal of this action without prejudice pursuant to Fed.R.Civ.P. 41(b). Fed.R.Civ.P. 41(b) states:

If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule-except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19-operates as an adjudication on the merits.

Plaintiff has failed to prosecute his action by not paying the filing or moving to proceed in forma pauperis. Because the action has not been served and defendants have not appeared the Court recommends that the dismissal be without prejudice.

Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the clerk is directed to set the matter for consideration on February 14, 2014, as noted in the caption.


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