Gonzalez v. Centurion Medical Products
Filing
8
OPINION AND ORDER adopting 6 Final Report and Recommendation. This action is DISMISSED WITHOUT PREJUDICE. Signed by Judge William S. Duffey, Jr on 4/18/2016. (anc)
Defendant Centurion Medical Products, a/k/a Centurion Medical Corporation
(“Defendant”). ([2]). On June 15, 2015, Plaintiff returned the summons
unexecuted, explaining that Defendant’s attorney had refused to accept
service. ([3]).
On January 15, 2016, Magistrate Judge Gerrilyn G. Brill found that Plaintiff
had not served process on Defendant. ([4]). Magistrate Judge Brill ordered
Plaintiff, within ten (10) days, to show cause why this case should not be dismissed
pursuant to Rule 4(m) for lack of service or pursuant to Local Rule 41.3(A)(3),
NDGa for want of prosecution. (Id.). Plaintiff did not respond within the ten (10)
day period.
On January 19, 2016, this action was reassigned to Magistrate Judge John K.
Larkins III.
On February 5, 2016, Magistrate Judge Larkins issued his R&R. The R&R
recommends dismissal of this action without prejudice pursuant to Rule 4(m)
because Plaintiff failed to timely serve process on Defendant.
II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
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judge’s report and recommendation. 28 U.S.C. § 636(b)(1);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). A district judge “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which objections have not been asserted, the Court must
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984). Plaintiff did not object
to the R&R, and the Court thus reviews it for plain error.
B.
Analysis
When Plaintiff filed his Complaint in June 2015, Rule 4(m) provided:
If a defendant is not served within 120 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. But if
the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.
Fed. R. Civ. P. 4(m) (Dec. 1, 2014) (amended Dec. 1, 2015).1
More than ten (10) months have passed since Plaintiff filed his Complaint.
1
On December 1, 2015, Rule 4(m) was amended to allow a plaintiff 90 days,
rather than 120 days, to serve the defendant.
3
Approximately three (3) months have passed since Magistrate Judge Brill ordered
Plaintiff to show cause why this case should not be dismissed. Plaintiff still has
not completed service of process or shown good cause for his failure. The R&R
recommends dismissal of this action without prejudice pursuant to Rule 4(m)
because Plaintiff failed to timely serve process on Defendant. The Court finds no
plain error in this finding and recommendation. See Slay, 714 F.2d at 1095.
Accordingly, this action is dismissed without prejudice.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge John K. Larkins III’s
Final Report and Recommendation [6] is ADOPTED, and this action is
DISMISSED WITHOUT PREJUDICE.
SO ORDERED this 18th day of April, 2016.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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