Lopez v. Salloum et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS HEREBY ORDERED that the Report and Recommendation of Magistrate Judge Michael T. Parker 18 is ADOPTED as the findings and conclusions of this Court. IT IS FURTHER ORDERED that a Final Judgment of Dismissal without Prejudice shall follow of even date herewith. Signed by Honorable David C. Bramlette, III on 2/22/2018 (ND)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JOSE DE PAZ LOPEZ

PLAINTIFF

VS.

CIVIL ACTION NO. 5:17-cv-18(DCB)(MTP)

M.D. ELLIS J. SALLOUM, ET AL.

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATION
This

cause

is

before

the

Court

on

the

Report

and

Recommendation (docket entry 18) of Magistrate Judge Michael T.
Parker, based on the plaintiff Jose de Paz Lopez’s failure to
prosecute his Complaint.

Magistrate Judge Parker recommends that

this action be dismissed without prejudice.
On March 28, 2017, the plaintiff moved to have the Court serve
the defendants with process.

The Court denied that request on

April 19, 2017, on the basis that the plaintiff was not proceeding
in forma pauperis, and therefore the Court and the U.S. Marshal’s
office had no obligation to assist him with service of process.
See Fed.R.Civ.P. 4(c); Local Rule 4.1(b)(“The United States Marshal
does not serve process in civil actions except on behalf of the
federal government, in actions proceeding in forma pauperis, on
writs of seizure and executions of judgments, and when otherwise
ordered by a federal court.”); see also Whiting v. Alvarado, 2004
WL 527793, at *1-2 (N.D. Tex. Mar. 17, 2004)(denying plaintiff’s
motion for service of process by U.S. Marshal where plaintiff was
not proceeding in forma pauperis). Further, the Court reminded the

plaintiff that process was to be completed with 90 days of the
filing of the complaint in accordance with Federal Rule of Civil
Procedure 4(m). The plaintiff did not serve process as ordered and
his deadline to do so has long since passed.
The Court issued a show cause order on June 8, 2017, which
gave the plaintiff until June 20, 2017, to show cause in writing
why this matter should not be dismissed for failure to serve
process and failure to prosecute.

See Order (docket entry 13).

This order was returned to the Court on June 22, 2017, as the
plaintiff was no longer located at his address of record. See Mail
Return (docket entry 14).

On June 30, 2017, the Court received a

notice of change of address, which provided an address that was
already of record.

See Notice (docket entry 15).

However, this

notice also appeared to indicate that the plaintiff had been
deported to El Salvador on May 26, 2017, and provided an address in
El Salvador.

See Notice (docket entry 15).

Out of an abundance of caution, the Court issued a final order
to show cause on July 11, 2017, ordering the plaintiff to show in
writing, on or before August 10, 2017, why this matter should not
be dismissed for failure to serve process and failure to prosecute.
See Order (docket entry 16). In the alternative, the plaintiff was
ordered to complete service of process and file proof thereof with
the Court on or before August 10, 2017.

The plaintiff was also

warned that failure to show good cause as ordered or to timely

2

complete service of process and to file proof thereof by August 10,
2017, could result in the dismissal of this action without further
notice.

See Order (docket entry 16).

The Order was mailed to the

plaintiff’s address of record and the address in El Salvador.

The

plaintiff did not respond as ordered.
It has been almost one year since this case was filed, and the
plaintiff has not served process on the defendants nor demonstrated
good

cause

to

justify

his

delay.

Magistrate

Judge

Parker

recommends that this matter be dismissed without prejudice.
Pursuant to Federal Rule of Civil Procedure 41(b), a trial
court has discretionary authority to dismiss an action sua sponte
for the plaintiff’s failure to prosecute or comply with any order
of the court.

See Link v. Wabash R.R. Co., 370 U.S. 626, 630

(1962); Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998).

The

power of the courts “to invoke this sanction is necessary in order
to prevent undue delays in the disposition of pending cases and to
clear their calendars of cases that have remained dormant because
of the inaction or dilatoriness of the parties seeking relief ...
so as to achieve the orderly and expeditious disposition of cases.”
Link, 370 U.S. at 629-31; see also Lopez v. Aransas County Indep.
Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978)(discussing trial
court’s Rule 41(b) discretionary authority).
In addition, Rule 4 of the Federal Rules of Civil Procedure
provides: “If a defendant is not served within 90 days after the

3

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).
Dismissal of this case is appropriate under Rule 4(m).1

The

plaintiff has failed to serve process in compliance with the Rule
despite several notices by the Court that such failure could result
in a dismissal, and he has failed to demonstrate good cause to
justify delay.

See Hearron v. Nichols, 2006 WL 1791172, at *1

(S.D. Miss. June 5, 2006)(Report and Recommendation, adopted by
Order dated June 27, 2006).
The Court shall therefore adopt the Report and Recommendation
as the findings and conclusions of this Court.
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation of
Magistrate Judge Michael T. Parker (docket entry 18) is ADOPTED as
the findings and conclusions of this Court;
FURTHER ORDERED that a Final Judgment of Dismissal without
Prejudice shall follow of even date herewith.
SO ORDERED, this the 22nd day of February, 2018.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

1

The Rule also permits the court to extend the time period on a
showing of good cause for failure to serve process in a timely manner.
The plaintiff has made no such showing.

4