Joseph v. Licking County et al

Filing 29

OPINION AND ORDER granting 28 Motion to Dismiss. Signed by Judge James L Graham on 12/18/2013. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
David A. Joseph, Sr.,
v.

Case No. 2:12-cv-803

Plaintiff,

Judge Graham

Licking County, et al.,
Defendants.
Opinion and Order
This matter is before the court on the motion of defendant Licking-Muskingum Community
Corrections Center (LMCCC) to dismiss the sole remaining claim in this action. The claim is
asserted by plaintiff David A. Joseph, Sr. under the Americans with Disabilities Act.
LMCCC moves to dismiss on the grounds that it was not served with process as required by
Rule 4 of the Federal Rules of Civil Procedure. A summons was issued to LMCCC on January 16,
2013. On January 24, 2013, the summons was returned to sender as unserved due to vacancy.
Counsel states that LMCCC has long ceased operations and the property to which plaintiff directed
the summons was vacant. There is no indication from the court’s docket that plaintiff made any
further efforts to serve LMCCC.
Rule 4(m) provides that if a defendant is not served within 120 days after the complaint is
filed, the court, on motion, may dismiss the action without prejudice. The complaint here was filed
on October 1, 2012. More than one year later, plaintiff has not served LMCCC, nor has he
responded to the motion to dismiss.
Accordingly, the motion to dismiss is GRANTED (doc. 28) and the complaint is dismissed
without prejudice.
s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: December 18, 2013