Gordon v. Deutsche Bank National Trust Company
Filing
12
OPINION AND ORDER that this action is DISMISSED WITHOUT PREJUDICE for failure to obey a lawful order of the Court. IT IS FURTHER ORDERED that Magistrate Judge Justin S. Anand's Non-Final Report and Recommendation is MODIFIED, and Defendant's Motion to Dismiss the Complaint is DENIED AS MOOT. Signed by Judge William S. Duffey, Jr on 1/26/2015. (anc)
Magistrate Judge issued an R&R, in which he extended the time for Plaintiff to
serve Defendant until November 19, 2014. The Magistrate Judge ordered Plaintiff
to file proof of service with the Court on or before November 26, 2014. In the
event that Plaintiff failed to file proof of service, the Magistrate Judge ordered
Plaintiff to show cause, on or before November 26, 2014, why this case should not
be dismissed for insufficient service of process and want of prosecution. The
Magistrate Judge noted that Plaintiff’s attempt to serve the Complaint on
Defendant’s attorney was insufficient to comply with Rule 4 of the Federal Rules
of Civil Procedure and Georgia law because Plaintiff failed to show that
Defendant’s attorney is an “officer, a managing or general agent, or any other
agent authorized by appointment or by law to receive service of process.”
R&R at 10.
On November 18, 2014, Plaintiff submitted to the Court an “Affidavit of
Diligence,” (“affidavit”) in which a process server states that he attempted to serve
the Summons and Complaint on Defendant’s attorney. According to the affidavit,
Defendant’s attorney did not accept the Summons and Complaint because she is
not an agent authorized to receive service of process on behalf of Defendant.
Plaintiff had knowledge of this fact because the Magistrate Judge’s R&R
repeatedly admonished her that serving Defendant’s attorney is insufficient to
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effect service of process on Defendant. R&R at 7; 10. Despite the Magistrate
Judge’s admonishment, Plaintiff again served the Summons and Complaint on
Defendant’s attorney.
The Court's local rules provide that a Court may dismiss for want of
prosecution when a plaintiff “fail[s] or refuse[s] to obey a lawful order of the court
in the case.” LR 41.3(A)(2) N.D. Ga. Further, under Federal Rule of Civil
Procedure 41(b), a district court may “dismiss an action sua sponte . . . for failure
to obey a court order.” Fed. R. Civ. P. 41(b); see also Equity Lifestyle Props., Inc.
v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1240–41 (11th Cir. 2009).
Plaintiff failed to comply with the Court's October 29, 2014, Order, after
being granted an extension of time to properly serve Defendant. Plaintiff did not
serve Defendant, on or before November 19, 2014, and Plaintiff did not file, on or
before November 26, 2014, the required proof of service with the Court. Plaintiff
also failed to show cause, on or before November 26, 2014, why this case should
not be dismissed for insufficient service of process and want of prosecution.
Plaintiff again served the Summons and Complaint on Defendant’s attorney
despite being warned that Defendant’s attorney is not an agent authorized to
receive service of process.
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For the foregoing reasons,
IT IS HEREBY ORDERED that this action is DISMISSED WITHOUT
PREJUDICE for failure to obey a lawful order of the Court.
IT IS FURTHER ORDERED that Magistrate Judge Justin S. Anand’s
Non-Final Report and Recommendation is MODIFIED, and Defendant’s Motion
to Dismiss the Complaint is DENIED AS MOOT.
SO ORDERED this 26th day of January, 2014.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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