GILMORE, et al V. SHAPIRO & INGLE, et al
Filing
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MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 03/28/2012. Plaintiffs have failed to serve the sole remaining Defendant in this action within 120 days of filing their Complaint and have offered no explanation to the Court for that failure. IT IS THEREFORE RECOMMENDED that the Court should dismiss the instant action, without prejudice, pursuant to Fed. R. Civ. P. 4(m).(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JERRY C. GILMORE, III, et al.,
Plaintiffs,
v.
SHAPIRO & INGLE, et al.,
Defendants.
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1:11CV457
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the undersigned United States
Magistrate Judge sua sponte.
2012.)
(See Docket Entry dated Mar. 1,
For the reasons that follow, the instant action should be
dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m).
Background
Husband and wife Plaintiffs Jerry C. Gilmore, III and Jeanette
D. Gilmore, through counsel, filed a Complaint in this Court on
June 7, 2011, against Defendants Shapiro & Ingle, LLP, GRP Loan,
LLC, Select Portfolio Servicing, Inc., and DLJ Mortgage Capital,
Inc., alleging claims for various violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1592 et seq.
Entry 1.)
(See Docket
Four months later, and apparently without having served
any Defendant (see Docket Entries dated June 7, 2011, to present),
Plaintiffs filed a Notice of Voluntary Dismissal With Prejudice,
dismissing their claims against Shapiro & Ingle, LLP, Select
Portfolio Servicing, Inc., and DLJ Mortgage Capital, Inc. (see
Docket Entry 4 at 1).
Because Defendant GRP Loan, LLC, remained as a Defendant in
the action and had not yet been served, on November 29, 2011, the
Clerk of Court sent Plaintiffs a Notice to Plaintiff of Failure to
Make Service Within 120 Days.
(Docket Entry 5.)
Said Notice
reminded Plaintiffs of their obligation under Fed. R. Civ. P. 4(m)
and noted that Fed. R. Civ. P. 4(m) “provides that if a defendant
is not served within 120 days of the filing of the complaint, the
court on motion or its own after notice to the plaintiff must
dismiss the action without prejudice or order that service be made
within a specified time.”
(Docket Entry 5 at 1.)
The Notice
further provided that Plaintiffs had 14 days to respond and that
“failure to respond to this [N]otice within the time allotted may
result
in
dismissal
of
the
[D]efendant, GRP Loan, LLC.”
action
without
prejudice
as
to
(Id.)
Despite these warnings, Plaintiffs have not responded to the
Court’s Notice, and the record does not reflect service on GRP
Loan, LLC.
(See Docket Entries dated Nov. 29, 2011, to present.)
Discussion
The relevant language of Fed. R. Civ. P. 4(m) states:
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 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
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must extend the time for service for an appropriate
period.
Fed. R. Civ. P. 4(m).
At present, more than nine months have passed since Plaintiffs
filed their Complaint in this action and the Court has provided
notice to Plaintiffs of the possible ramifications of their failure
to comply with Fed. R. Civ. P. 4(m) (see Docket Entry 5).
Despite
the Court’s warning, Plaintiffs have provided no explanation to the
Court for their failure to pursue their claims, much less made any
showing of good cause.
Given the complete lack of attention paid
to these matters, no grounds exist for this Court to enter an
“order that service be made within a specified time,” Fed. R. Civ.
P. 4(m), rather than dismissing the action at hand.
Conclusion
Plaintiffs have failed to serve the sole remaining Defendant
in this action within 120 days of filing their Complaint and have
offered no explanation to the Court for that failure.
IT IS THEREFORE RECOMMENDED that the Court should dismiss the
instant action, without prejudice, pursuant to Fed. R. Civ. P.
4(m).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
Date:
March 28, 2012
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