Smith v. United States, et al

Filing 21

DECISION AND ORDER: This case is DISMISSED WITHOUT PREJUDICE due to Plaintiff's failure to timely serve Defendants. The Clerk of Court is directed to close this case. SO ORDERED. A copy of this NEF and Decision and Order have been mailed to the pro se Plaintiff. Signed by Hon. Frank P. Geraci, Jr. on 4/26/2018. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KEVIN P. SMITH,
Plaintiff,
Case # 17-CV-1226-FPG
v.
ORDER DISMISSING CASE
UNITED STATES, et al.,
Defendants.

INTRODUCTION
On November 27, 2017, pro se Plaintiff Kevin P. Smith filed this action against Defendants
the United States, Westwego Police, Big L’s Building Materials, Home Depot, Sears Corporate
Office, J.C. Penney, Greece Embassy, Cellino & Barnes, Volkswagen, Ellicott Development, Red
Roof Inn, and Carl Paladino.1 ECF No. 1. Plaintiff paid the $400.00 filing fee. By Order dated
March 12, 2018, the Court gave Plaintiff until April 12, 2018 to demonstrate good cause for failing
to timely serve Defendants. ECF No. 12.
DISCUSSION
Pursuant to Federal Rule of Civil Procedure 4(m), Plaintiff was supposed to serve
Defendants within 90 days after he filed his Complaint, i.e., by February 26, 2018. See Fed. R.
Civ. P. 4(m); see also Fed. R. Civ. P. 4(c)(1) (noting that “[t]he plaintiff is responsible for having
the summons and complaint served within the time allowed by Rule 4(m)”). “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.” Fed. R. Civ. P. 4(m).

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Three days after he filed the Complaint in this action, Plaintiff filed a new action that appeared nearly identical to
this one. See Case # 17-CV-1245-FPG. On January 30, 2018, the Court consolidated these actions pursuant to Federal
Rule of Civil Procedure 42(a)(2). Id. at ECF No. 13. Case # 17-CV-1245-FPG was closed and all docketing now
occurs on case # 17-CV-1226-FPG.

Here, although Plaintiff filed multiple documents since he opened this case, including
several “mail receipts” (see Case # 17-CV-1245-FPG, ECF No. 3), he has not proved service to
the Court and there is no indication that any Defendant has been served. See Fed. R. Civ. P. 4(l)
(noting that “[u]nless service is waived, proof of service must be made to the court” by affidavit).
Since the Court’s March 12, 2018 Order, Plaintiff has filed eight “Amendment Sheets,” all of
which are entirely incoherent and illegible, and none of which prove service or demonstrate good
cause for failing to do so.
Because Defendants were not served within 90 days after Plaintiff filed his Complaint, the
Court provided notice to Plaintiff of this defect, and Plaintiff failed to respond, this action is
dismissed without prejudice pursuant to Rule 4(m).
CONCLUSION
This case is DISMISSED WITHOUT PREJUDICE due to Plaintiff’s failure to timely serve
Defendants. The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
Dated: April 26, 2018
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court 

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