Ametitovi v. Omaha Area Health Educational Center, Inc. et al
FINDINGS AND RECOMMENDATION - to Robert F. Rossiter, Jr., United States District Court Judge, that the above-captioned case be dismissed for failure of service pursuant to Federal Rule of Civil Procedure 4(m). Ordered by Magistrate Judge Michael D. Nelson. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
OMAHA AREA HEALTH EDUCATIONAL
CENTER, INC., and DOES 1-10
Plaintiff filed the Complaint on April 24, 2019. (Filing No. 1). On April 25, 2019, the
Court granted Plaintiff’s Motion for Leave to Proceed in forma pauperis (Filing No. 5). The clerk
issued Plaintiff’s only requested summons for “Lizabeth Arellano (Registered Agent)” on the same
date (Filing No. 6). Based on the record before the Court, it appeared that Plaintiff failed to serve
the named defendant with notice of this lawsuit, so on August 13, 2019, the undersigned magistrate
judge issued a show cause order requiring Plaintiff to show cause why this case should not be
dismissed pursuant to Federal Rule of Civil Procedure 4(m) for failure to serve the defendant
within 90-days of filing the Complaint. (Filing No. 9). The show cause order warned Plaintiff
that failure to timely comply with the order may result in dismissal of the action without further
notice. The deadline for responding to the show cause order was August 27, 2019.
On August 26, 2019, Plaintiff filed three documents, which the Court construes as
Plaintiff’s response to the show cause order: two unsigned certified mail receipts directed to
Lizabeth Arellano returned to sender and unable to forward, which Plaintiff filed as “Waivers of
Service Returned Unexecuted,” (Filing No. 8; Filing No. 9), and a signed certified mail receipt
addressed to “Errik Ejike, Sup. Program Multicultural and Comm. Affairs at Creighton
University,” which Plaintiff filed as a “Waiver of Service returned executed upon defendant
Omaha Area Health Educational Center, Inc.” (Filing No. 10).
None of Plaintiff’s documents are sufficient to show service of process on the named
defendant and there remains no indication that the named defendant was served and received notice
of this lawsuit. Plaintiff did not request an extension of the service deadline or otherwise offer the
Court any explanation as to why the named defendant was not served, despite being providing
with an opportunity to do so in the Court’s show cause order. Plaintiff was responsible for having
the summons and complaint served within the time allowed by Rule 4(m), and failed to do so in
this case. Accordingly,
IT IS HEREBY RECOMMENDED to Robert F. Rossiter, Jr., United States District
Court Judge, that the above-captioned case be dismissed for failure of service pursuant to Federal
Rule of Civil Procedure 4(m).
Dated this 4th day of September, 2019.
BY THE COURT:
s/ Michael D. Nelson
United States Magistrate Judge
A party may object to a magistrate judge’s findings and recommendation by filing an
objection within fourteen (14) days after being served with a copy of the findings and
recommendation. NECivR 72.2. Failure to timely object may constitute a waiver of any objection.
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