Ward et al v. Lestorti

Filing 26

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that the compliant be DISMISSED without prejudice for pltf's failure to obtain service of process on any deft. Signed by Magistrate Judge John S. Bryant on 7/7/11. (rd)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
KEVIN WARD, et al.,
Plaintiffs,
v.
JAMES C. LESTORTI, et al.,
Defendants.

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NO. 3:09-0352
Judge Nixon/Bryant

TO: The Honorable Senior Judge John T. Nixon
REPORT AND RECOMMENDATION
It appears from the record that although the complaint in
this

case

was

filed

over

two

years

ago

on

April

15,

2009,

plaintiffs have failed to obtain service of process upon any
defendant.
apparently

It further appears from the record that plaintiffs
have

made

numerous

attempts

defendant Lestorti without success.

to

obtain

service

on

The Court previously has

granted extensions of time pursuant to Rule 4(m), Federal Rules of
Civil Procedure, within which to obtain service of process.
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.
From the record the undersigned Magistrate Judge finds
that defendants have failed to obtain service of process on any
defendant within the time provided by law despite an extension of
time granted by the Court.

For this reason, the undersigned

Magistrate Judge RECOMMENDS that the complaint be DISMISSED without
prejudice.
RECOMMENDATION
For the reasons stated above, the undersigned Magistrate
Judge RECOMMENDS that the complaint be DISMISSED pursuant to Rule
4(m) for failure to obtain service of process on any defendant.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any party has fourteen (14) days from service of this Report and
Recommendation in which to file any written objections to this
Recommendation, with the District Court.

Any party opposing said

objections shall have fourteen (14) days from receipt of any
objections filed in this Report in which to file any responses to
said objections.

Failure to file specific objections within

fourteen (14) days of receipt of this Report and Recommendation can
constitute a waiver of further appeal of this Recommendation.
Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111
(1986).
ENTERED this 7th day of July 2011.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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