Brandy v. Select Food Mart, Inc. et al
Filing
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ORDER that plaintiff has until the close of business on May 31, 2016, to file with the Clerk of Court evidence of service or show cause why this case should not be dismissed as against the defendant for failure to prosecute by providing an explanation for the delay in seeking service. Ordered by Magistrate Judge Thomas D. Thalken. (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUDIE BRANDY,
Plaintiff,
8:16CV48
vs.
ORDER
SELECT FOOD MART, INC., and
JOHN DOES 1-2,
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 26, 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 the next day. See Filing No. 4.
The plaintiff took no action on her case until March 24, 2016, when she sought leave to
have the U.S. Marshal serve the named defendant.
See Filing No. 5.
The court
granted the plaintiff’s motion the next day. See Filing No. 6. The court informed the
plaintiff’s attorney certain forms must be completed prior to service by the U.S. Marshal.
Id. The plaintiff took no action until submitting the summons form on April 29, 2016, on
which date the summons was issued by the Clerk of Court. See Filing No. 7. No further
documents have been filed in this matter. The defendant has not made an appearance.
Despite the plaintiff’s in forma pauperis status and leave for service by the U.S.
Marshal, 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. 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. Upon consideration,
IT IS ORDERED:
The plaintiff has until the close of business on May 31, 2016, to file with the Clerk
of Court evidence of service or show cause why this case should not be dismissed as
against the defendant for failure to prosecute by providing an explanation for the delay
in seeking service.
Dated this 12th day of May, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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