Jefferson v. 3's Lounge & Package Inc. et al

Filing 11

ORDER that the plaintiff has until the close of business on May 31, 2016, to (1) file with the Clerk of Court evidence of service for Richard Walker and (2) take appropriate action against 3's Lounge and Package Inc.; or show cause why this case should not be dismissed as against the defendants. Ordered by Magistrate Judge Thomas D. Thalken. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

VERYL JEFFERSON,
Plaintiff,

8:16CV38

vs.
3’S LOUNGE & PACKAGE INC.;
RICHARD WALKER; and
DOES 1-5,

ORDER

Defendants.
This matter is before the court after a review of the court file and pursuant to
NECivR 41.2, which states in pertinent part: “At any time, a case not being prosecuted
with reasonable diligence may be dismissed for lack of prosecution.” Further, Federal
Rule of Civil Procedure 4(m) establishes a 90-day time limit for service of process on
any defendant in a civil case, absent a showing of good cause. Specifically, the rule
mandates:
If a defendant is not served within 90 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.
Fed. R. Civ. P. 4(m).
In this case the complaint was filed on January 23, 2016. See Filing No. 1. On
the same date, the plaintiff applied to proceed without prepayment of filing fees. See
Filing No. 2. The court granted the plaintiff’s motion on January 26, 2016. See Filing
No. 4. On March 4, 2016, the plaintiff sought summons for the defendant 3’s Lounge
and Package Inc., which summons was issued. See Filing Nos. 5. The plaintiff filed
proof of service for the defendant 3’s Lounge and Package Inc. on March 20, 2016.
See Filing No. 6.

On April 20, 2016, the Clerk of Court entered default as to the

defendant 3’s Lounge and Package Inc. See Filing No. 9. The plaintiff has taken no
further action against any of the defendants. None of the defendants have made an
appearance.

It remains the plaintiff’s duty to go forward in prosecuting the case. In this case,
the time elapsed for service prior to the plaintiff seeking summons as to the defendant
Richard Walker. The plaintiff failed to seek an extension of the deadline to complete
service or provide an explanation for the delay. Under the circumstances, the plaintiff
must make a showing of good cause for the failure of timely service or the action must
be dismissed against the defendant Richard Walker. Additionally, now the plaintiff has
obtained a Clerk’s entry of default as to the defendant 3’s Lounge and Package Inc.
This defendant failed to enter an appearance or seek the clerk’s entry of default be set
aside. The plaintiff failed to take any additional action against this defendant. The
plaintiff may, for example, file a motion for entry of judgment against the defaulted
defendant, pursuant to Fed. R. Civ. P. 55(b) and NECivR 55.1(b) or (c). Alternatively,
the plaintiff may voluntarily dismiss the action against the defendants pursuant to Fed.
R. Civ. P. 41(a) or be subject to involuntary dismissal pursuant to Fed. R. Civ. P. 41(b).
Upon consideration,

IT IS ORDERED:
The plaintiff has until the close of business on May 31, 2016, to (1) file with the
Clerk of Court evidence of service for Richard Walker and (2) take appropriate action
against 3’s Lounge and Package Inc.; or show cause why this case should not be
dismissed as against the defendants.
Dated this 16th day of May, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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