Asiel-Dey v. Santander Consumer USA, Inc. et al

Filing 11

REPORT AND RECOMMENDATIONS that Plaintiff's claims against Defendant Craps be Dismissed without prejudice for failure to timely effect service, and Defendant Craps be Dismissed from this case - re 1 Complaint filed by Min. Negus Kwame Fahim Asiel-Dey. Objections to R&R due by 7/13/2017. Signed by Magistrate Judge Brian K. Epps on 6/26/17. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
MIN. NEGUS KWAME FAHIM
ASIEL-DEY,

)
)
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Plaintiff,
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v.
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CV 117-006
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SANTANDER CONSUMER USA, INC, and )
VERLEY MATTHEW CRAPS,
)
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Defendants.
)
________________________________________________________
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
________________________________________________________
Pro se Plaintiff filed this case on January 11, 2017, and the Court provided him with
basic instructions regarding the development and progression of his case. (Doc. no. 4.) The
Court explained that Plaintiff is responsible for serving each defendant and explained how
service could be accomplished. (Id. at 1-2.) The Court specifically informed Plaintiff that,

under Fed. R. Civ. P. 4(m), he had ninety days from the filing of the complaint to accomplish
service, and failure to accomplish service could result in dismissal of individual defendants
or the entire case. (Id. at 2.)
On April 21, 2017, the Court directed Plaintiff to show cause as to why he had not
served Defendants within the time allotted by Fed. R. Civ. P. 4(m). (Doc. no. 5.) Plaintiff
responded and indicated he sent to each Defendant a waiver of service form on April 11,
2017. (Doc. no. 8.) The Court extended the service period thirty-days, and reminded
Plaintiff that Fed. R. Civ. P. 4 does not compel waiver of service, and if Defendant Craps

failed to waive service, he was responsible for arranging personal service. (Doc. no. 9.) The
Court further cautioned Plaintiff that if there was no proof of service at the expiration of the
thirty-day extension, the Court would recommend dismissal of any unserved Defendants.
(Id. at 2.)
Defendant Santander Consumer waived service and has filed a motion to dismiss.
(Doc. nos. 6, 10.) However, there is no evidence that Defendant Craps has been served, nor
has Plaintiff offered an explanation for his failure to serve Defendant Craps. Rule 4(m)
empowers courts to extend the time for service for good cause shown or, in the absence of
good cause, when “other circumstances warrant an extension of time based on the facts of the
case.” Lepone-Dempsey v. Carroll County Comm’rs, 476 F.3d 1277, 1282 (11th Cir. 2007);
see also Henderson v. United States, 517 U.S. 654, 662-63 (1996); Horenkamp v. Van
Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005) (permitting extension of service period,
even in absence of good cause). Thus, if a plaintiff fails to show good cause for failing to
timely effect service, a court “must still consider whether any other circumstances warrant an
extension of time based on the facts of the case.” Lepone-Dempsey v. Carroll County
Comm’rs, 476 F.3d 1277, 1282 (11th Cir. 2007).
Here, Plaintiff has not shown good cause for failing to timely effect service on
Defendant Craps, and the Court finds no other circumstances warrant an additional extension
of the service period. The Court has warned Plaintiff that failure to effect service on
individual defendants would lead to their dismissal from the case.

(See doc. no. 9.)

Accordingly, the Court REPORTS and RECOMMENDS Plaintiff’s claims against

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Defendant Craps be DISMISSED without prejudice for failure to timely effect service, and
Defendant Craps be DISMISSED from this case.
SO ORDERED this 26th day of June, 2017, at Augusta, Georgia.

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