Santos Perdomo v. U.S. Citizenship and Immigration Services (USCIS) et al

Filing 12

REPORT AND RECOMMENDATIONS re 1 Complaint. Recommending Complaint be Dismissed without prejudice as to Defendant Swacina and Close the Case. Objections to R&R due by 10/7/2024. Signed by Magistrate Judge Marty Fulgueira Elfenbein on 9/23/2024. See attached document for full details. (ls)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-CV-21687-MOORE/Elfenbein
DANIEL ALEJANDRO
SANTOS PERDOMO,
Plaintiff,
v.
U.S. CITIZENSHIP AND
IMMIGRATION SERVICES
(USCIS), et al.,
Defendants.
______________________________/
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court on a sua sponte review of the record. 1 Plaintiff Daniel
Alejandro Santos Perdomo filed a Complaint for Mandamus, APA Judicial Review, and
Declaratory Relief (the “Complaint”) against Defendants U.S. Citizenship and Immigration
Services (“USCIS”), Director of USCIS Ur Mendoza Jaddou, Director of USCIS Miami Field
Office Linda Swacina, U.S. Department of Homeland Security (the “Department”), and Secretary
of the Department Alejandro Mayorkas (the “Secretary”). See ECF No. [1]. Plaintiff filed the
Complaint on May 1, 2024, see ECF No. [1], and the Clerk of Court issued a summons as to
Director of USCIS Miami Field Office Linda Swacina on May 2, 2024, 2 see ECF No. [6].

The Honorable K. Michael Moore referred this matter to me “to take all necessary and proper action as required by
law regarding all pre-trial, non-dispositive matters and for a Report and Recommendation on any dispositive matters.”
ECF No. [5].
1

The Clerk did not issue summonses as to the other defendants because, as it noted on the docket, the “Attorney or
Pro Se party’s return address” was “not listed.” See ECF No. [3]. The Clerk explained that the “[f]iler may file a
Notice of Filing Proposed Summonses with the corrected summons attached,” see ECF No. [3], but, to date, Plaintiff
has not filed any Notices of Filing Proposed Summonses.

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CASE NO. 24-CV-21687-MOORE/Elfenbein
Under Federal Rule of Civil Procedure 4(m), Plaintiff was required to serve Defendants
within 90 days after filing the Complaint. See Fed. R. Civ. P. 4(m). Plaintiff filed the Complaint
on May 1, 2024, see ECF No. [1], so he was required to serve Defendants by July 30, 2024, see
Fed. R. Civ. P. 4(m). As of August 8, 2024, there was no indication in the court file that Plaintiff
had served Defendants as required by Rule 4(m), so the undersigned ordered him to “either
properly serve Defendants or show good cause as to why he has not.” See ECF No. [8] at 2. The
undersigned also warned Plaintiff that “[f]ailure to file proof of service or to show good cause by
August 23, 2024 may result in the undersigned issuing a Report and Recommendation
recommending the dismissal without prejudice of Plaintiff’s action against Defendants.” See ECF
No. [8] at 2.
On August 19, 2024, Plaintiff filed his “Proof of Service pursuant to Fed. R. Civ. P. 4(l).”
See ECF No. [9] at 1. In his Proof of Service, Plaintiff explained that he served a copy of the
“summons regarding Complaint for APA Judicial Review and Declaratory Relief, D.E. 1” by
“USPS Certified Mail” on Defendant Linda Swacina and that the service was “perfected on June
10, 2024.” See ECF No. [9] at 1. But his Proof of Service did not indicate that he served Defendant
Swacina with a copy of the Complaint itself or that he served both documents on the United States,
as the Federal Rules of Civil Procedure require. See generally ECF No. [9]; Fed. R. Civ. P. 4(i)(2)
(“To serve a United States . . . employee sued only in an official capacity, a party must serve the
United States and also send a copy of the summons and of the complaint by registered or certified
mail to the . . . employee.”). For that reason, Plaintiff’s service on Defendant Swacina was only
partial.
To allow Plaintiff one final opportunity to correct the service deficiencies as to Defendant
Swacina, the undersigned issued an Order directing Plaintiff “to cure the deficiencies in service

2

CASE NO. 24-CV-21687-MOORE/Elfenbein
identified above” on or before September 9, 2024. See ECF No. [11] at 2. The undersigned once
again warned Plaintiff that “[f]ailure to file proof of service showing that Plaintiff has properly
served Defendant Swacina and the United States by September 9, 2024 will result in the
undersigned issuing a Report and Recommendation recommending the dismissal without prejudice
of Plaintiff’s action against Defendant Swacina.” See ECF No. [11] at 2 (citations and footnote
omitted). 3 Despite that notice and warning, Plaintiff has not filed the required proof of service
indicating that he has cured the service deficiencies as to Defendant Swacina.
As Rule 4(m) explains, “[i]f a defendant is not served within 90 days after the complaint is
filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action
without prejudice against that defendant or order that service be made within a specified time.”
See Fed. R. Civ. P. 4(m). The undersigned ordered that service be made within a specified time,
see ECF No. [11], but Plaintiff did not provide proof of service as to Defendant Swacina or “show[]
good cause for the failure” such that “the court must extend the time for service for an appropriate
period,” see Fed. R. Civ. P. 4(m). As a result, there is only one option left under Rule 4(m) now
that Plaintiff has been given the required notice: to “dismiss the action without prejudice against”
Defendant Swacina. See Fed. R. Civ. P. 4(m). Accordingly, I respectfully RECOMMEND that:
1. The Complaint, ECF No. [1], be DISMISSED WITHOUT PREJUDICE as to
Defendant Swacina; and
2. If the Court adopts this Report and Recommendation and the August 29, 2024 Report
and Recommendation, see ECF No. [10], I further recommend that the Clerk of Court
CLOSE the case and terminate all deadlines.

Because Plaintiff failed to serve the other Defendants despite being ordered to do so and warned about the
repercussions if he did not, on August 29, 2024, I recommended that the Complaint be dismissed without prejudice as
to Defendants USCIS, USCIS Director Jaddou, the Department, and the Secretary. See ECF No. [10].
3

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CASE NO. 24-CV-21687-MOORE/Elfenbein
Pursuant to Local Magistrate Rule 4(b), the parties will have fourteen (14) days from the
date of being served with a copy of this Report and Recommendation within which to file written
objections, if any, with the Honorable K. Michael Moore, United States District Judge. Failure to
timely file objections shall bar the parties from a de novo determination by the District Judge of
an issue covered in the Report and shall bar the parties from attacking on appeal unobjected-to
factual and legal conclusions contained in this Report except upon grounds of plain error if
necessary in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149
(1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1.
RESPECTFULLY SUBMITTED in Chambers in Miami, Florida on September 23,
2024.

cc:

_____________________________________
MARTY FULGUEIRA ELFENBEIN
UNITED STATES MAGISTRATE JUDGE

All Counsel of Record

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