Samanamud v. CIDNY Independant L.S.

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION DISMISSING THIS ACTION WITHOUT PREJUDICE. For the reasons stated in the attached Order, the court dismisses this case without prejudice pursuant to Federal Rule of Civil Procedure 4(m). The Clerk of the Court is respectfully directed to serve a copy of this Order on plaintiff and to close this case. Ordered by Judge Kiyo A. Matsumoto on 4/4/2016. (Gong, LiJia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------- X
CONSUELO SAMANAMUD,
Plaintiff,
-against-

ORDER ADOPTING REPORT
AND RECOMMENDATION
DISMISSING THIS
ACTION WITHOUT
PREJUDICE

CIDNY INDEPENDENT L.S.,
Defendant.

15-CV-4967 (KAM)(LB)

-------------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff Consuelo Samanamud commenced this action on
August 20, 2015, alleging that defendant discriminated against
her in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”).

(ECF No. 1.)

On October 22, 2015, the court directed plaintiff to
serve summons and complaint by December 18, 2015 pursuant to
Federal Rule of Civil Procedure 4(m) (“Rule 4(m)”) and warned
that failure to file proof that defendant was served or failure
to show good cause why defendant was not timely served by
December 18, 2015 would result in Judge Bloom recommending that
the plaintiff’s action be dismissed without prejudice pursuant
to Rule 4(m).

A copy of Judge Bloom’s October 22, 2015 Order

and other materials were mailed to plaintiff on October 22,
2015.

(ECF No. 9.)

On March 7, 2016, Judge Bloom issued a Report and
Recommendation (“R&R”) recommending that the court dismiss this
action without prejudice pursuant to Rule 4(m) because plaintiff
failed to file proof of service on the defendant or show good
cause why she has not timely served the defendant.
10.)

(ECF No.

The R&R notified the parties that any objections must be

filed within fourteen days of service of the R&R, pursuant to 28
U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).
(R&R at 2.)

The Clerk of the Court noted that a copy of Judge

Bloom’s R&R was mailed to plaintiff on March 9, 2016 via first
class mail.

The statutory period for filing objections has now

expired, and no objections to Judge Bloom’s R&R have been filed.
A district court reviews those portions of a Report
and Recommendation to which a party has timely objected under a
de novo standard of review and “may accept, reject, or modify,
in whole or in part, the findings or recommendations . . .”
U.S.C. § 636(b)(1)(C).

28

However, where no objections to the

Report and Recommendation have been filed, the district court
“need only satisfy itself that that there is no clear error on
the face of the record.”

Urena v. New York, 160 F. Supp. 2d

606, 609-10 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F.
Supp. 1186, 1189 (S.D.N.Y. 1985)).

The court has nonetheless

conducted a de novo review of Judge Bloom’s Report and
Recommendation.

2

Upon both clear error and de novo review, the court
adopts Judge Bloom’s recommendation dismissing this action
without prejudice.

Pursuant to Rule 4(m), plaintiff had 120

days1 after the complaint was filed to serve defendant.

By Order

dated October 22, 2015, Judge Bloom directed plaintiff to serve
defendant with the summons and complaint by December 18, 2015.
Judge Bloom’s October 22, 2015 Order also stated that plaintiff
is required to advise the Clerk of Court of any change of
address.

Plaintiff has not filed proof of service on defendant

and has not shown good cause why service was not timely
effected.

Consequently, the court dismisses this case without

prejudice pursuant to Rule 4(m).
The Clerk of the Court is respectfully directed to
serve a copy of this Order on plaintiff and to close this case.

SO ORDERED.
Dated:

April 4, 2016
Brooklyn, New York

_______ ___/s/
Kiyo A. Matsumoto
United States District Judge

1

Although Rule 4(m) has been amended, effective December 1, 2015, to require
that the summons and compliant be served within 90 days from the date the
complaint is filed, the court applies the 120 day period in effect at the
time plaintiff filed her complaint.

3