United States District Court, D. Nevada
ANSHU B. PATHAK, Plaintiff,
YAHOO!, INC., et al., Defendant.
M. NAVARRO DISTRICT JUDGE
before the Court is Plaintiff Anshu B. Pathak's
(“Plaintiff's”) Objection, (ECF No. 73),
regarding the Honorable Magistrate Judge George Foley,
Jr.'s Report and Recommendation (“R&R”),
(ECF No. 72). For the reasons discussed below, the R&R is
ADOPTED in full, and this action is
DISMISSED without prejudice.
January 13, 2017, Plaintiff filed the Complaint against
Defendants Yahoo!, Inc., Aabaco Holdings, Lexity, and Alibaba
(collectively, “Defendants”). (Compl., ECF No.
1). Plaintiff subsequently filed the First Amended Complaint,
(ECF No. 6), on April 12, 2017. The Court struck the First
Amended Complaint because Plaintiff's time to amend as of
right had lapsed, and he did not obtain leave to amend. (Min
Order, ECF No. 68); (see Fed. R. Civ. P.
(“FRCP”) 15); (see also LR 15-1).
Thereafter, Plaintiff's original Complaint became the
operative complaint in this action. (See Min. Order,
ECF No. 68).
August 16, 2018, the Court ordered the parties to
“submit a status report no later than August 30, 2018
regarding the status of the case and/or the status of service
of process on Defendants.” (Order 1:22-23, ECF No. 69)
(emphasis omitted). On September 18, 2018, the Court found
that Plaintiff failed to comply, and the Court again ordered
the parties to “file a status report no later than
September 24, 2018 regarding the status of the case and/or
the status of service of process on Defendants.” (Order
1:17-19, ECF No. 70) (emphasis omitted). Plaintiff again
failed to comply. (See Order to Show Cause, ECF No.
on October 2, 2018, the Court issued an Order to Show Cause,
requiring the parties to demonstrate “why sanctions
should not be imposed for the party's failure to comply
with th[e] Court's [September 18, 2018] Order.”
(Id. 1:19-21). The Court gave the parties until
October 15, 2018, to show cause. (Id.). The Court
warned that “[f]ailure to timely respond to th[e] Order
to Show Cause may result in the imposition of sanctions up to
and including a recommendation to the District Judge that
this case be dismissed or that default judgment be entered
against any remaining defendants.” (Id.
1:21-24). Plaintiff failed to comply. (See R&R,
ECF No. 72). Accordingly, on October 26, 2018, Judge Foley
issued an R&R recommending that the Court strike
Plaintiff's Complaint and dismiss the case. (R&R
3:2-3, ECF No. 72).
may file specific written objections to the findings and
recommendations of a United States Magistrate Judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
D. Nev. R. IB 3-2. Upon the filing of such objections, the
Court must make a de novo determination of those
portions to which objections are made. Id. The Court
may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the Magistrate Judge. 28
U.S.C. § 636(b)(1); D. Nev. IB 3-2(b).
Objection, Plaintiff argues that the Court should not dismiss
the case, and that it should compel Defendants to meet with
Plaintiff to file a joint status report. (Obj. ¶ 6, ECF
No. 73). According to Plaintiff, “[n]one of the
counsels approached [him] to file Joint Status Report after
the court issued the order to file Joint Status Report, on
September 14, 2018.” (Id. ¶ 2). Plaintiff
claims that “[he] approached counsels of Defendants to
meet in person to file a joint report as per court order, but
none of the counsels approached [him] to file joint
report.” (Id. ¶ 3). Specifically,
Plaintiff alleges he approached counsel for Defendants OnTrac
and Diversified Transport & Storage, Inc.
(“DTS”) to file the report. (Id.
¶¶ 4, 5).
arguments fail for numerous reasons. First, the operative
Complaint does not name OnTrac and DTS as defendants, and the
Court has dismissed Plaintiffs claims against OnTrac and DTS
with prejudice. (See Compl., ECF No. 1; Order
Granting Stipulation of Dismissal, ECF No. 66). Second,
Plaintiff is responsible for Defendants' failure to
confer with him regarding a status report because Defendants
have not been properly served; there is no indication that
Defendants are even aware of this action. (See
Notice, ECF No. 56); see also FRCP 4. Third,
Plaintiff does not provide an acceptable excuse for his
failure to comply with the Order to Show Cause. Even if
Plaintiff could not have conferred with Defendants, the Order
to Show Cause provided Plaintiff the opportunity to explain,
in writing, why the Court should not dismiss his Complaint.
(Order to Show Cause, ECF No. 71). Moreover, Plaintiff did
not request an extension of time to comply with the Order to
Show Cause. See FRCP 6(b). Accordingly, the Court
finds no basis to depart from the R&R.
IS HEREBY ORDERED that the Report and
Recommendation, (ECF No. 72), is ADOPTED in
IS FURTHER ORDERED that this action is