Alton & Southern Railway Co. v. Brotherhood of Railroad Signalmen

Filing 10

ORDER that the plaintiff has until the close of business on November 16, 2016, to file evidence of service for the defendant or show cause why this case should not be dismissed. Ordered by Magistrate Judge Thomas D. Thalken. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

ALTON & SOUTHERN
RAILWAY CO.,
8:16CV360
Plaintiff,
vs.

ORDER

BROTHERHOOD OF
RAILROAD SIGNALMEN,
Defendant.
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 July 21, 2016. See Filing No. 1. On the
same date, the plaintiff filed a motion for temporary restraining order. See Filing No. 2.
The court denied the plaintiff’s motion on July 22, 2016, after a hearing. See Filing No.
9. The plaintiff has taken no further action against the defendant. While the defendant
was represented by counsel during the preliminary injunction hearing, no summons has
been issued, no evidence of service filed, and the defendant has not filed an answer.
It remains the plaintiff’s duty to go forward in prosecuting the case. In this case,
the time elapsed for service, however the defendant has been represented by counsel
in this matter. Under the circumstances, the plaintiff will have an opportunity to make a

showing of service or provide 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 November 16, 2016, to file
evidence of service for the defendant or show cause why this case should not be
dismissed.
Dated this 1st day of November, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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