Gittens v. TransUnion et al

Filing 11

ORDER DISMISSING CASE without prejudice. Signed by Chief Judge Frank D. Whitney on 10/13/16. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:16-cv-00228-FDW-DSC
JAMAAL GITTENS,
Plaintiff,
vs.
EQUIFAX,
Defendant.

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ORDER

This matter is before the Court on Plaintiff’s “Motion for Summarry [sic] Judgment.”
(Doc. No. 9.) Plaintiff, who appears pro se in this matter, argues that Defendant Equifax1 “hasn’t
responded to the complaint within the time allowed pursuant to Federal Civil procedures [sic] Rule
12 . . . .” (Doc. No. 9, p. 1.) The instant motion, as written, provides neither sufficient evidence
nor sufficient legal argument to warrant the relief requested by Plaintiff.
Moreover, a review of the docket indicates that Defendant Equifax was never properly
served. Despite Plaintiff’s “Affidavit,” (Doc. No. 4, p. 2), the purported proof of service fails to
indicate Defendant Equifax actually received the certified mailing allegedly sent by Plaintiff (Doc.
No. 4, p. 4). The certified mail form attached to Plaintiff’s proof of service affidavit fails to
indicate a signature or any other marking by Equifax tending to show it was received at the address
listed on the left side of the card. Accordingly, Plaintiff’s “Affidavit” that he served Equifax by
certified mail is unsubstantiated.
Rule 4(m) of the Federal Rules of Civil Procedure provides, “If a defendant is not served

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Plaintiff also filed this action against TransUnion; however, Plaintiff subsequently voluntarily dismissed his claims
against that Defendant. (See Doc. No. 10.)

within 90 days after the complaint is filed, the court—on motion or on its own motion after notice
to the plaintiff—must dismiss the action without prejudice . . . .” Plaintiff filed this case on May
9, 2016, and the deadline for service expired months ago. Because the Court finds PLaintiff’s
purported proof of service to be deficient and because the time for otherwise serving Defendant
Equifax has long passed, Plaintiff has failed to comply with Rule 4(m).
Rule 41(b) of the Federal Rules of Civil Procedure provides, “If the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to dismiss the
action . . . .” Since Defendant Equifax has been served, it is not available to make such a motion.
Moreover, “a district court possesses the ‘inherent power’ to dismiss a case sua sponte for failure
to prosecute. . . . [S]uch authority derives from ‘the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and expeditious disposition of cases.” Eriline Co.,
S.A. v. Johnson, 440 F.3d 648, 654 (4th Cir. 2006) (quoting Link v. Wabash R.R. Co., 370 U.S.
626, 630-31 (1962)). “[A]side from the interests of the individual parties in a lawsuit, a district
court has an important interest in keeping its docket from becoming clogged with dormant cases .
. . .” Erline Co., 440 F.3d at 654.
For these reasons, the Complaint is DISMISSED for failure to comply with Federal Rules
of Civil Procedure 4(m) and failure to prosecute pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure.
IT IS THEREFORE ORDERED that Plaintiff’s case is DISMISSED without prejudice for
the reasons stated herein. The Clerk is respectfully DIRECTED to CLOSE THE CASE.
Signed: October 13, 2016