MCGUINNESS v. THE HEALTH AND HOSPITAL CORPORATION OF MARION COUNTY

Filing 6

REPORT AND RECOMMENDATIONS re 1 Complaint filed by TRACY MCGUINNESS c/m. Signed by Magistrate Judge Mark J. Dinsmore on 7/31/2012

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

TRACY MCGUINNESS,
Plaintiff,
vs.
THE HEALTH AND HOSPITAL
CORPORATION OF MARION COUNTY,
Defendant.

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) NO. 1:11-cv-01032-TWP-MJD
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REPORT AND RECOMMENDATION
This matter is before the Court, sua sponte, in response to
Plaintiff Tracy McGuinness’s continuing failure to comply with
Federal Rule of Civil Procedure 4(m).

Despite having filed her

Complaint approximately one year ago on August 1, 2011, [Dkt.
1], Ms. McGuinness has failed to serve a summons and complaint
upon the defendant in this case in violation of the federal
rules.
DISCUSSION
Federal Rule of Civil Procedure 4(m) provides that, 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. Fed. R.
Civ. P. 4(m).

If the plaintiff shows good cause for the

failure, the court must extend the time for service for an
appropriate period.

Id.

To establish good cause that would

warrant the Court granting an extension of time, a plaintiff
must at least show “reasonable diligence” in attempting service.
Tremper v. Air-Shields, Inc., No. IP00-1080-C-B/S, 2001 W.L.
10000686 *1 (S.D. Ind. Aug. 27, 2001).

Absent good cause, Rule

4(m) permits the court to grant a discretionary extension of
time for service, particularly where the applicable statute of
limitations would bar a later filed action.

Id. at *2. “The

running of the applicable statute of limitations merits close
examination, but does not mandate an extension of time.”

Id.

Additionally, the Court has the inherent power to sanction
conduct which abuses the judicial process, and such power is
governed by “not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so as
to achieve the orderly and expeditious disposition of cases.”
Barhnill v. U.S., 11 F.3d 1360, 1367 (7th Cir. 1993).

“Pursuant

to this power, a court may impose the severe sanction of
dismissal... if the circumstances so warrant.”

Id.

Even though Ms. McGuinness is pro se, that is no excuse for
her not to comply with the Federal Rules of Civil Procedure.
Ms. McGuinness was issued an order to show cause on May 10,
2012, [Dkt. 4], requiring her to explain her failure to comply
with Rule 4(m) and informing her of the potential consequences
of her failure to respond and take appropriate action, including
dismissal.

Ms. McGuinness responded with a statement filed

with the Court on June 1, 2012, acknowledging that she
understood the Court’s order and assured the Court that she
would serve a copy of the complaint on the defendant. [Dkt. 5.]
Although Ms. McGuinness did not demonstrate good cause for her
failure to timely serve the summons and complaint on the
defendant, the Court, within its discretion, permitted her an
extension of time.

However, it has been two months since she

responded to the order to show cause and she still has not
served the defendant. While pro se litigants benefit from
various procedural protections not otherwise afforded to
attorney-represented litigants, “being a pro se litigant does
not give a party unbridled license to disregard clearly
communicated court orders.” Downs v. Westphal, 78 F.3d 1252,
1256 (7th Cir. 1996).
Ms. McGuinness has had a year to serve the defendant with a
summons and copy of the complaint, and was provided with notice
of and an appropriate opportunity to correct this deficiency. I
therefore recommend that this matter be dismissed, without
prejudice, due to Ms. McGuinness’s failure to comply with
Federal Rule of Procedure 4(m). While I recognize that the
applicable statute of limitations has already run on Ms.
McGuinness’s Americans With Disabilities Act claim, she has been
provided with ample notice and time to comply with Rule 4(m),
and dismissal is appropriate under these circumstances.

CONCLUSION
For the reasons stated above, the Magistrate Judge
recommends that Plaintiff Tracy McGuinness’s claims in this
matter be DISMISSED WITHOUT PREJUDICE.

Any objections to the

Magistrate Judge’s Report and Recommendation shall be filed with
the Clerk in accordance with 28 U.S.C. § 636(b)(1) and Rule 72
of the Federal Rules of Civil Procedure, and failure to file
timely objections within fourteen days after service of this
Report and Recommendation shall constitute a waiver of
subsequent review absent a showing of good cause for such
failure.
Dated:

07/31/2012
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

Distribution List:

TRACY MCGUINNESS
707 E. 84th Street
Indianapolis, IN 46240