Ashford et al v. Douglas County et al

Filing 36

ORDER that plaintiff's motion 34 for extension of time to serve defendants is denied. The plaintiff's second amended complaint 31 is dismissed as to all defendants. Ordered by Senior Judge Lyle E. Strom. (JSF)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
TIMOTHY L. ASHFORD, TIMOTHY
L. ASHFORD, P.C.L.L.O.,

)
)
)
Plaintiffs,
)
)
v.
)
)
W. RUSSELL BOWIE, in his
)
Official Capacity, CRAIG
)
McDERMOTT, in his Official
)
Capacity, LESLIE JOHNSON,
)
in her Official Capacity,
)
SHELLY STRATMAN, in her
)
Official Capacity, JOHN DOES, )
1-1000, JANE DOES, 1-1000,
)
)
Defendants.
)
______________________________)

8:15CV8

ORDER

This matter is before the Court on plaintiff’s motion
for extension of time to serve defendants (Filing No. 34).
Defendants Douglas County, John Does, 1-1000, and Jane Does, 11000, filed a brief in opposition (Filing No. 35).

After review

of the motion, brief, and applicable law, the Court will deny the
plaintiff’s motion for an extension.
Facts and Procedural History
Plaintiff, Timothy L. Ashford (“Ashford”), filed a
complaint against Douglas County, the State of Nebraska, John
Does, 1-1000, Jane Does, 1-1000, and various Douglas County
employees on January 12, 2015 (Filing No. 1).

Plaintiff filed a

second amended complaint1 on September 1, 2015 (Filing No. 31).
The plaintiff had 120 days from the filing of the second amended
1

The pleading entitled “first amended complaint” was
stricken from the record as being an incorrect document (See
Filing No. 32).

complaint to complete service.

Summons were issued to a number

of defendants on December 29, 2015 (Filing No. 33).

However,

there is no record that any defendant has been served a summons
with a copy of the complaint as required by Federal Rule of Civil
Procedure 4.

Plaintiff now moves this Court for an additional 21

days to serve the defendants.
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
the 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 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).
In this case, the plaintiff has failed to serve any of
the defendants.

The plaintiff has not executed service to the

defendants to which summons have been issued.
been issued for three defendants.

Summons have not

In addition, the plaintiff has

failed to show good cause for the failure to timely serve.
Therefore, the plaintiff’s motion for extension of time to serve
defendants will be denied.

As a result, the plaintiff’s

complaint will be dismissed without prejudice as to all
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defendants, pursuant to Federal Rule of Civil Procedure 4(m).
Accordingly,
IT IS ORDERED:
1)

The plaintiff’s motion (Filing No. 34) for

extension of time to serve defendants is denied.
2)

The plaintiff’s second amended complaint (Filing

No. 31) is dismissed as to all defendants.
DATED this 11th day of January, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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