McCarty et al v. Doe et al

Filing 28

REPORT AND RECOMMENDATION recommending that the case be dismissed for failure to serve process. Signed by Magistrate Judge Charles E Binder. (MBar)

Download PDF
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION DOROTHY ALTHEA McCARTY, Plaintiff, v. JOHN DOE, Head Official for the State Treasury Department, PATRICIA CARUSO, Director of the Michigan Department of Corrections, JOHN DOE, Warden of the Carson City Correctional Facility, GENERAL MOTORS PENSION CENTER, JOHN DOE, Administrator of General Motors Pension Center, Defendants. _______________________________/ MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION PURSUANT TO RULE 41(b) OF THE FEDERAL RULES OF CIVIL PROCEDURE I. RECOMMENDATION IT IS RECOMMENDED that the case be sua sponte DISMISSED for failure to serve process within the time period allowed under Rule 4(m) of the Federal Rules of Civil Procedure. CASE NO. 05-CV-10320 DISTRICT JUDGE DAVID M. LAWSON MAGISTRATE JUDGE CHARLES BINDER II. REPORT This case was originally filed by three plaintiffs in December 2005. Plaintiffs paid the full filing fee. The case was sua sponte dismissed following screening and a judgment issued in favor of Defendants in November 2006. (Doc. 15.) Plaintiffs appealed to the U.S. Court of Appeals for the Sixth Circuit. The Sixth Circuit affirmed the dismissal of all claims brought by Plaintiffs Wayne McCarty and Eddie Julian, and reversed the dismissal of the claim brought by Plaintiff Dorothy McCarty. McCarty v. Doe, 2008 WL 2660860 (6th Cir. July 7, 2008) (unpublished). On August 15, 2008, the case was restored to the Court's active docket and again referred to this magistrate judge for general pretrial case management. (Doc. 24.) Plaintiff Dorothy A. McCarty filed her amended complaint on October 17, 2008. (Doc. 27.) Pursuant to Rule 4(c)(1) of the Federal Rules of Civil Procedure, "[t]he plaintiff is responsible for service of a summons and complaint within the time allowed under subdivision (m) and shall furnish the person effecting service with the necessary copies of the summons and complaint." FED. R. CIV. P. 4(c)(1). Rule 4(m) provides as follows: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. FED. R. CIV. P. 4(m). When managing cases involving pro se litigants, the Court must take into consideration the difficulties an individual faces in bringing forward their case without the benefit of legal representation. However, the Court must also balance the defendants' right to a fair and timely resolution of the litigation, and therefore pro se litigants are not to be accorded any special consideration when they fail to adhere to readily-comprehended court deadlines. See Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). The amended complaint was filed on October 17, 2008, and therefore Rule 4(m) allowed Plaintiff McCarty until February 17, 2009, to effect service of process on the Defendants. Plaintiff has failed to do so. Therefore, I suggest that, unless Plaintiff is able demonstrate good cause for 2 the failure to serve Defendants in her objection to this Report and Recommendation, the case be sua sponte dismissed. III. REVIEW The parties to this action may object to and seek review of this Report and Recommendation within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are advised that making some objections, but failing to raise others, will not preserve all the objections a party may have to this Report and Recommendation. Willis v. Sec'y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. s/ CHARLES E. BINDER United States Magistrate Judge Charles` E Binder Dated: March 20, 2009 CERTIFICATION I hereby certify that this Report and Recommendation was electronically filed this date, served on Dorothy Althea McCarty by First Class Mail, and served on U.S. District Judge David M. Lawson in the traditional manner. Dated: March 20, 2009 By s/Mimi D. Bartkowiak Law Clerk to Magistrate Judge Binder 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?