Stevens v. City of Vidalia et al

Filing 19

ORDER granting 16 Motion to Dismiss Signed by Honorable David C. Bramlette, III on 10/27/2014 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
TIMOTHY L. STEVENS

PLAINTIFF

VS.

CIVIL ACTION NO. 5:13-cv-116(DCB)(MTP)

CITY OF VIDALIA, BY AND THROUGH
ITS AGENT FOR SERVICE OF PROCESS,
ITS MAYOR, HON. HIRAM COPELAND; AND
CHARLIE C. ROGERS, INDIVIDUALLY

DEFENDANTS

ORDER OF DISMISSAL
This cause is before the Court on defendants City of Vidalia
and Charlie C. Rogers’ Motion to Dismiss for Failure to Comply with
Court’s Order of June 26, 2014, or alternatively Renewed Motion to
Dismiss for Insufficient Service of Process (docket entry 16).
Having carefully considered the motion, to which no response has
been filed, and being fully advised in the premises, the Court
finds as follows:
On July 2, 2013, the plaintiff Timothy L. Stevens filed suit
in

Adams

County

Circuit

Court

against

the

City

of

Vidalia,

Louisiana, and Charlie C. Rogers for injuries the plaintiff claims
he

sustained

Mississippi.

in

a

July

2,

2010,

car

accident

in

Natchez,

After more than one year following the filing of his

suit, the plaintiff has yet to serve process on the defendants;
nor, despite invitation by the Court, has the plaintiff shown good
cause for his failure to do so.
By Order of March 17, 2014, the Court allowed the plaintiff
fourteen (14) days from the date of entry of the Order to serve

process.

The plaintiff did not do so, nor did he offer any

explanation for his failure to serve process.

Again, by Order of

June 26, 2014, the Court allowed the plaintiff thirty (30) days
from the date of entry of the Order to serve the defendants or
explain how he is prevented from doing so.

In addition, the Court

ordered plaintiff’s counsel to file a response within thirty (30)
days

informing

the

Court

whether

the

delay

in

service

was

attributable to the plaintiff’s attorney or to the plaintiff
himself; and, if he was no longer representing the plaintiff, to
notify the Court within the same time period, as well as notify his
client. The plaintiff was warned that a failure to comply with the
Order could result in dismissal of his action.

No response by the

plaintiff or his counsel has been received.
The Court finds that no further extensions can be afforded the
non-responsive plaintiff, and that his action must be dismissed.
The defendants urge dismissal with prejudice, but the Court finds
that the dismissal should be without prejudice pursuant to Federal
Rule of Civil Procedure 4(m).
432, 434 (5th Cir. 2010).

See Ayika v. Sutton, 378 Fed.Appx.

The Court also warns the plaintiff,

however, that although the dismissal is without prejudice, it may
operate as a dismissal “with prejudice” where the statute of
limitations has run.

See Sanchez v. Perez, 96 F.3d 1445, 1996 WL

512289, *2 (5th Cir. 1996)(citing Norlock v. City of Garland, 768
F.2d 654, 658 (5th Cir. 1985).

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Accordingly,
IT IS HEREBY ORDERED that defendants City of Vidalia and
Charlie C. Rogers’ Motion to Dismiss (docket entry 16) is GRANTED;
FURTHER ORDERED that this action shall be dismissed without
prejudice, and a Final Judgment shall issue this day.
SO ORDERED, this the 27th day of October, 2014.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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