Williams v. Ertz et al
ORDER and FINDINGS AND RECOMMENDATION regarding Amended Complaint 9 filed by Jocita C. Williams. IT IS ORDERED: The Clerk of Court shall mail a copy of this order to the plaintiff: Jocita C. Williams, 6221 Gabriel Oaks Drive, Baton Rouge, LA 70 820. IT IS RECOMMENDED TO JUDGE DISTRICT JUDGE JOSEPH BATAILLON that: The plaintiff's amended complaint (Filing No. 9 be dismissed as to the defendants, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m), NECivR 41.2, Fed. R. Civ. P. 37. Pursuant to NECivR 72.2 any objection to this Findings and Recommendation shall be filed with the Clerk of the Court within fourteen (14) days after being served with a copy of this Findings and Recommendation. Ordered by Magistrate Judge Thomas D. Thalken. (Copies mailed as directed)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ARCHBISHOP JOCITA C.
LAND AMERICA LAWYERS TITLE,
DOES, et al.,
This matter is before the court sua sponte.
On December 24, 2013, the
undersigned magistrate judge entered an order requiring the plaintiff to show cause why
her action against the defendants should not be dismissed pursuant to NECivR 41.2 for
failure to prosecute. See Filing No. 12. The plaintiff responded by seeking additional time
to serve the defendants. See Filing No. 13. On January 16, 2014, the court allowed the
plaintiff an extension of time until April 18, 2014, to complete service of process. See
Filing No. 14.
In this case the complaint was filed on December 19, 2012. See Filing No. 1. The
court allowed the plaintiff leave to amend her complaint, which she did on March 22, 2013.
See Filing No. 7. The court required the plaintiff to again amend her complaint, which she
did on June 11, 2013. See Filing No. 9. On August 15, 2013, the court dismissed several
of the defendants and gave the plaintiff permission to go forward with her June 11, 2013,
amended complaint and serve five defendants. See Filing No. 10. The Clerk of Court
provided the plaintiff with the necessary summonses and forms. Id.
In January the Clerk of Court issued some of the summonses requested by the
plaintiff, however the proposed summonses for two of the defendants were returned to the
plaintiff because they did not have addresses. See Filing No. 15. On March 14, 2014, the
Clerk of Court received the three issued summonses returned unexecuted. See Filing
Nos. 16-18. The documents note the server from the U.S. Marshal’s office was unable to
serve them due to “insufficient paperwork,” which deficiency was not remedied by the
plaintiff after inquiry. Id.
The plaintiff has not filed any additional documents with the court. No defendant
has entered an appearance or filed an answer in this matter. The plaintiff has initiated no
other action in this matter. There is no evidence in the record the plaintiff served process
on any of the defendants. The court warned the plaintiff that failure to complete service
may result in the court dismissing the plaintiff’s claims without further notice.
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
Employment, 636 F.2d 249, 250 (8th Cir. 1980).
Dismissal without prejudice is
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, failed to cure
Despite proceeding pro se, it remains the plaintiff’s duty to go forward in prosecuting
the case. Pursuant to NECivR 41.2: “At any time, a case not being prosecuted with
reasonable diligence may be dismissed for lack of prosecution.” Further, Fed. R. Civ. P.
4(m) establishes a 120-day time limit for service of process on the defendant in a civil
case, absent a showing of good cause. The court allowed the plaintiff additional time to
make a showing of good cause for the failure of timely service on the defendants or show
cause why the action should not be dismissed against such defendants. The plaintiff’s
deadline to serve process was extended by over ninety days. See Filing No. 14. The
deadline for service of process expired.
The plaintiff’s failure to prosecute his claims
subjects the plaintiff to dismissal of the complaint.
See NECivR 41.2.
plaintiff’s failure to comply with this court’s order subjects the plaintiff to dismissal of the
The Eighth Circuit explained the court’s discretion to dismiss for failure to prosecute
The Federal Rules of Civil Procedure permit dismissal with
prejudice “[f]or failure of a plaintiff to prosecute or to comply
with these rules or any order of court.” Fed. R. Civ. P. 41(b).
Despite the breadth of this language, however, we have
recognized that dismissal with prejudice is an extreme sanction
that should be used only in cases of willful disobedience of a
court order or where a litigant exhibits a pattern of intentional
delay. This does not mean that the district court must find that
the appellant acted in bad faith, but requires “only that he acted
intentionally as opposed to accidentally or involuntarily.”
Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000) (citations omitted). The
Eighth Circuit continued, noting the district court did not err in dismissing the action with
prejudice after finding the plaintiff had “engaged in a persistent pattern of intentional delay
by willfully disregarding court orders and violating the Federal Rules.” Hunt, 203 F.3d at
However, the Eighth Circuit has also noted “[d]ismissal with prejudice is an
extreme sanction and should be used only in cases of wilful disobedience of a court order
or . . . persistent failure to prosecute a complaint.” In re Popkin & Stern, 196 F.3d 933,
938 (8th Cir. 1999) (citations omitted); see Siems v. City of Minneapolis, 560 F.3d 824,
826 (8th Cir. 2009). The court must initially consider “the egregiousness of the plaintiff’s
conduct” and, secondarily, “the adverse affect of the plaintiff’s conduct on the defendant
and on the administration of justice.” Otis v. Knudsen, No. 05-489, 2008 WL 4949157, at
*3 (D. Minn. Nov. 17, 2008) (quoting Wright v. Sargent, 869 F.2d 1175, 1176 (8th Cir.
In this case, the plaintiff has failed to comply with the court order requiring her to
serve the defendants. The plaintiff has failed to maintain communication with the court.
The plaintiff’s lack of responsiveness interferes with the orderly processes of this court.
Such failure has already contributed to a delay in progressing this case to resolution. The
plaintiff’s deadline to serve process extended by over ninety days at her request, but she
has not been diligent in accomplishing service.
See Filing No. 14. The deadline for
service of process expired.
Federal Rule of Civil Procedure 16(f) authorizes sanctions “[i]f a party . . . (a) fails to
appear at a scheduling or other pretrial conference; . . . or (c) fails to obey a scheduling or
other pretrial order.” In such circumstances, “the court may issue any just orders, including
those authorized by Rule 37(b)(2)(A)(ii)-(vii)” for sanctions. Additionally,
Instead of or in addition to any other sanction, the court must
order the party, its attorney, or both to pay the reasonable
expenses--including attorney’s fees--incurred because of any
noncompliance with this rule, unless the noncompliance was
substantially justified or other circumstances make an award of
Fed. R. Civ. P. 16(f)(2). Similarly, Fed. R. Civ. P. 41(b) states: “If the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to dismiss
the action or any claim against it.”
The plaintiff failed to comply with the court’s order. The plaintiff has acted in a
manner that interferes with the orderly processes of this court. Further, the undersigned
magistrate judge finds the plaintiff’s failure to comply with the court’s orders interferes with
the orderly administration of justice. Upon consideration,
IT IS ORDERED:
The Clerk of Court shall mail a copy of this order to the plaintiff: Jocita C. Williams,
6221 Gabriel Oaks Drive, Baton Rouge, LA 70820.
IT IS RECOMMENDED TO DISTRICT JUDGE JOSEPH F. BATAILLON that:
The plaintiff’s amended complaint (Filing No. 9) be dismissed as to the defendants,
without prejudice, pursuant to Federal Rule of Civil Procedure 4(m), NECivR 41.2, Fed. R.
Civ. P. 37.
Pursuant to NECivR 72.2 any objection to this Findings and Recommendation shall
be filed with the Clerk of the Court within fourteen (14) days after being served with a copy
of this 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 the time of filing such
Failure to file a brief in support of any objection may be deemed an
abandonment of the objection.
Dated this 9th day of May, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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