Chevron U.S.A., Inc. et al v. Reitz et al

Filing 12

FINDINGS AND RECOMMENDATION to Judge Bataillon that the plaintiff's Complaint 1 be dismissed without prejudice. Ordered by Magistrate Judge Thomas D. Thalken. (ADB, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CHEVRON U.S.A., INC., et al., Plaintiffs, vs. A. RANDAL REITZ and DEBRA K. REITZ, Defendants. ) ) ) ) ) ) ) ) ) )

8:09CV203 FINDINGS AND RECOMMENDATION

This matter is before the undersigned magistrate judge sua sponte.

The

undersigned magistrate judge entered an order requiring the plaintiffs to show cause why this action should not be dismissed pursuant to Fed. R. Civ. P. 4(m). See Filing No. 11. The plaintiffs did not file a response. For the reasons set forth below, the undersigned magistrate judge will recommend the plaintiffs' complaint be dismissed without prejudice.

BACKGROUND The plaintiffs filed the complaint in this matter on June 22, 2009. See Filing No. 1. The plaintiffs have never sought summonses and no summonses have been issued. Although the plaintiffs sought and received leave to serve by publication in July, there is no indication the plaintiffs ever effected service of the summons and the complaint upon the defendants. On October 28, 2008, the undersigned magistrate judge entered an order requiring the plaintiffs to show cause why this action should not be dismissed pursuant to Fed. R. Civ. P. 4(m). See Filing No. 11. The plaintiffs have not filed a response to the show cause order.

ANALYSIS Federal Rule of Civil Procedure 4(m) 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 extend the time for service for an appropriate period. See Fed. R. Civ. P. 4(m). The Eighth Circuit has long held dismissal for failure to prosecute is well within the court's discretion. See Roberts v. Missouri Div. Of Dismissal without prejudice is

Employment, 636 F.2d 249, 250 (8th Cir. 1980).

appropriate when service of the summons and complaint has not been made upon the defendant within 120 days after filing of the complaint. See Fed. R. Civ. P. 4(m); Bullock v. United States, 160 F.3d 441, 442 (8th Cir. 1998) (per curiam) (affirming district court's dismissal without prejudice under Rule 4(m)); see also Carmona v. Ross, 376 F.3d 829, 830 (8th Cir. 2004) (dismissal affirmed where plaintiff given opportunity, but failed to cure defect). In this case, the plaintiffs have failed to effect service of summons and the complaint upon the defendants in accordance with Rule 4(m). The plaintiffs have provided the court with no explanation for the failure to serve the defendants. The plaintiffs have not complied with the court's order to show cause why the action should not be dismissed. The plaintiffs have acted in a manner that interferes with the orderly processes of this court. The undersigned magistrate judge finds the plaintiffs' failure to prosecute this action interferes with the orderly administration of justice. Upon consideration,

IT IS RECOMMENDED TO CHIEF JUDGE JOSEPH F. BATAILLON that: The plaintiffs' complaint (Filing No. 1) be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m).

ADMONITION Pursuant to NECivR 72.3 any objection to these Findings and Recommendation shall be filed with the Clerk of the Court within ten (10) business days after being served with a copy of these Findings and Recommendation. Failure to timely object may

constitute a waiver of any objection. The brief in support of any objection shall be filed at

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the time of filing such objection. Failure to file a brief in support of any objection may be deemed an abandonment of the objection. Dated this 12th day of November, 2009. BY THE COURT: s/Thomas D. Thalken United States Magistrate Judge

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