Morrison v. Holding et al

Filing 8

ORDER denying 5 Motion for Summary Judgment and denying 7 Motion for Hearing - The Clerk is DIRECTED to close this case. Signed by Chief Judge Louise Wood Flanagan on 06/30/2011. (Baker, C.)

IN THE UJ\IITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7: IO-CV-237-FL
DONALD L. MORRISON,
Plaintiff,
v.

GEORGE E. B. HOLDING; DAVID
CORTES; DENNIS DUFFY; S.
KATHERn\IE BURNETTE; MARK
MANSELL, and WAYNE R. MYERS,
Defendants.

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ORDER

This matter is before the court on plaintiffs motion for summary judgment (DE # 5) and
motion for hearing (DE # 7). Where it appears that none ofthe named defendants in this action have
been served within the time provided for service in Federal Rule of Civil Procedure 4(m),
defendant's motions for summary judgment and hearing are denied and the action is dismissed.
Plaintiff filed pro se complaint with this court on October 14, 2010. On October 29, 2010,
the court ordered that plaintiff pay the necessary filing fee within thirty (30) days, which fee was
received on November 26,2010. On November 22,2010, the court entered order assigning a civil
case number to the matter. The docket reveals that defendants were never served with summons and
complaint. On February 4, 2011, plaintiff moved for summary judgment on the grounds that
defendants never responded to his complaint.
On May 25, 2011, the court ordered defendant to show cause as to why the action should not
be dismissed without prejudice for failure to serve defendants. Defendant was given fourteen (14)
days to file response. On June 27, 2011, defendant filed motion for hearing to review exculpatory

evidence. The motion for hearing does not address the court's May 25, 2011, order, nor does it
address the issue of plaintiff s failure to serve defendants. Instead, defendant contends that he has
received exculpatory evidence from a prior criminal case, and he wishes to present such evidence
to the court.
Rule 4(m) provides that if a defendant is not served within 120 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 or order that service be made within a specified time. Ifthe 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).
Absent a showing of good cause, the complaint must be dismissed. Mendez v. Elliot 45 F.3d 75.
78-79 (4th Cif. 1995). A district court has no discretion to salvage an action once a Rule 4(m)
violation has been found and there is no good cause for the violation. Id. (citing In re Cooper, 971
F.2d 640, 641 (lIth Cir. 1992».
As noted above, the docket reflects that no service has been accomplished. Even after the
court issued show cause order to plaintiff, notifying him of problems with service and providing an
opportunity to explain the failure to serve, plaintiff failed to provide any reason for not serving
defendants, and instead filed a motion for hearing which addressed none of the issues regarding
service pointed out by the court. As noted in the show cause order, the court is mindful that plaintiff
proceeds pro se, however plaintiffhas filed numerous lawsuits in this district, and has complied with
the rules of service in at least one of those actions. No cause having been shown for plaintiff's
failure to serve defendants pursuant to Rule 4(m), the court is without discretion to allow plaintiff's
lawsuit to proceed. As such, plaintiff's motion for summary judgment (DE # 5) and motion for

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hearing (DE # 7) are DENIED without prejudice. The Clerk is DIRECTED to close this case.
SO ORDERED, this tM3?.}

day of June, 2011.

LOU SE W. FLANAG

Chief United States Distric

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