Patel et al v. United States of America

Filing 5

ORDER: Defendant, United States of America's motion to dismiss 4 is GRANTED. Pursuant to Federal Rule of Procedure 41(b), this case is DISMISSED with prejudice. Signed by Judge G. Patrick Murphy on 4/26/2013. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

GOVINDBHAI PATEL and POPATLAL
PATEL d/b/a COUNTY LINE QUICK
SHOP
Plaintiff,
vs.
UNITED STATES OF AMERICA
Defendant.

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CIVIL NO. 12-252-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter is before the Court on amended motion to dismiss filed by Defendant, United
States of America (Doc. 4). Plaintiff filed this case in the Third Judicial Circuit Court for the
State of Illinois, Madison County; the matter was subsequently removed to the United States
District Court for the Southern District of Illinois by the Government on March 22, 2012 (Doc. 2).
Service of process was never made upon the United States Attorney; rather the Government
became aware of this case when service was made at the United States Department of Agriculture
in Alexandria, Virginia on or about February 22, 2012 (Doc. 2).
To this date, Plaintiff has done nothing to prosecute this lawsuit. The matter has sat idle
on the Court’s docket. On March 18, 2013, the Government filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 4(i), 4(m), and 12(b)(5). Plaintiff did not file a response to the
Government’s motion to dismiss. On April 24, 2013, the Government then filed an amended
motion to dismiss, which simply elaborates on the previously filed motion (Doc. 4). To this date,

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Plaintiff has still not responded to either of the Government’s motions.
Federal Rule of Civil Procedure 4(i) governs the method for which a party must properly
serve the United States or its agencies, which normally is accomplished by delivering a copy of the
summons and of the complaint to the United States Attorney for the district where the action is
brought. See FED. R. CIV. P. 4(i). Federal Rule of Civil Procedure 4(m) directs that “[i]f 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 . . . .” FED. R. CIV. P.
4(m).
Plaintiff has failed to properly serve the Government, and to this date has not even
attempted to correct service of process. Plaintiff’s insouciance toward Federal Rule of Civil
Procedure 4 certainly warrants dismissal of this action. However, under Rule 41(b), “[i]f the
plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to
dismiss the action or any claim against it.” FED. R. CIV. P. 41(b). “Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) . . . operates as an adjudication on the
merits.” Id. (emphasis added).
As previously noted, Plaintiff has failed to prosecute this lawsuit in any manner.
Accordingly, pursuant to Federal Rule of Civil Procedure 4, this case is DISMISSED. Because
of Plaintiff’s utter neglect in prosecuting this case, Federal Rule of Civil Procedure 41(b) allows a
dismissal with prejudice. See James v. McDonalds Corp., 417 F.3d 672, 681 (7th Cir. 2005)
(“Once a party invokes the judicial system by filing a lawsuit, it must abide by the rules of the
court; a party cannot decide for itself when it feels like pressing its action and when it feels like
taking a break because trial judges have a responsibility to litigants to keep their court calendars as

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current as humanly possible.”) (internal citations and quotations omitted).

This case is

DISMISSED with prejudice. The Clerk of the Court is DIRECTED to CLOSE this case on the
Court’s docket.

IT IS SO ORDERED.
DATED: April 26, 2013
/s/ ZA ctàÜ|v~ `âÜÑ{ç
G. PATRICK MURPHY
United States District Judge

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