Catanzaro v. Carr et al

Filing 84

ORDER for Matthew Catanzaro to Show Cause why Defendant Newville Should Not be Dismissed. (Show Cause Response due by 10/28/2011) - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MATTHEW CATANZARO,
Plaintiff,
vs.
CARR, et al.,

CIVIL ACTION NO. 10-CV-14554
DISTRICT JUDGE NANCY G. EDMUNDS
MAGISTRATE JUDGE MONA K. MAJZOUB

Defendants.
___________________________________________/
ORDER FOR PLAINTIFF TO SHOW CAUSE WHY DEFENDANT NEWVILLE
SHOULD NOT BE DISMISSED
Plaintiff filed the instant civil rights complaint on November 16, 2010. (Docket no. 1). In
January 2011 the Court granted Plaintiff leave to proceed in forma pauperis and ordered the U.S.
Marshal Service to effectuate service on Defendants. (Docket nos. 7, 8). On January 25, 2011
waiver of service was returned unexecuted as to Defendant Newville. On March 30, 2011 the Court
again ordered service as to Defendant Newville. (Docket no. 42). Consequently, the U.S. Marshal
Service made a second attempt to effectuate service on Defendant Newville on June 1, 2011 by
mailing a copy of the summons and complaint to a new address provided to them by the Michigan
Department of Corrections. Once again the waiver of service was returned unexecuted. At this
time, Defendant Newville has not been served.
The time for service of the summons and complaint is established under Federal Rule of
Civil Procedure 4(m), which provides:
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
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extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). The Sixth Circuit reviews “for abuse of discretion a district court judgment
dismissing a complaint for failure to effect timely service of process.” Johnson v. Hayden, No. 993959, 2000 WL 1234354, at *3 (6th Cir. Aug. 24, 2000) (citing Byrd v. Stone, 94 F.3d 217, 219 (6th
Cir.1996)).
Service should have been made on Defendant Newville no later than March 16, 2011.
Therefore, Plaintiff is ORDERED to show cause in writing why this Defendant should not be
dismissed for failure to comply with Federal Rule of Civil Procedure 4(m). Plaintiff must make such
showing by October 28, 2011.
IT IS SO ORDERED.
NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date
of this Order within which to file any written appeal to the District Judge as may be permissible
under 28 U.S.C. 636(b)(1).
Dated: September 23, 2011

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Matthew Catanzaro and
Counsel of Record on this date.

Dated: September 23, 2011

s/ Lisa C. Bartlett
Case Manager

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