Cunningham v. Rapid Capital Finance et al

Filing 66

REPORT AND RECOMMENDATION: For the foregoing reasons, the undersigned RECOMMENDS that Plaintiff's claims against Defendants GMC and John/Jane Does 1-5 be DIMSISSED WITHOUT PREJUDICE. As these are the only remaining Defendants in this suit a nd the time to amend the pleadings has long since passed, the undersigned likewise RECOMMENDS this case be DISMISSED. Signed by Magistrate Judge Joe Brown on 4/10/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CRAIG CUNNINGHAM,
Plaintiff,
v.
RAPID CAPITAL FINANCE, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 3:15-cv-00957
Judge Trauger/Brown

To: The Honorable Aleta A. Trauger, United States District Judge
REPORT AND RECOMMENDATION
On March 3, 2017, Plaintiff was ordered to show cause why his claims against
Defendants GMC and John/Jane Does 1-5 should not be dismissed. (Doc. 63). Plaintiff has not
filed a timely response or sought to extend the filing deadline. For the reasons that follow, the
undersigned RECOMMENDS that Plaintiff’s claims against Defendants GMC and John/Jane
Does 1-5 be DIMSISSED WITHOUT PREJUDICE for failure to timely add new parties and
failure to effect timely service of process. As these are the only remaining Defendants in this
action and the time to amend the pleadings has long since passed, the undersigned consequently
RECOMMENDS this case be DISMISSED.
I.

BACKGROUND

This suit is premised on alleged violations of the Telephone Consumer Protection Act.
(Doc. 27). Plaintiff’s Amended Complaint names the following Defendants: Rapid Capital
Funding, LLC/RCF; Craig Hecker; GMC; and John/Jane Does 1-5. (Doc. 27). Through a
Stipulation of Dismissal, Plaintiff’s claims against Rapid Capital Funding, LLC/RCF and Craig
Hecker were dismissed. (Doc. 48). Plaintiff’s subsequent Motion for Leave to Amend His

1

Complaint was denied. (Doc. 52). The only Defendants remaining in this suit are GMC and
John/Jane Does 1-5. On March 3, 2017, undersigned ordered Plaintiff to show cause by April 3,
2017 why Plaintiff’s claims against these Defendants should not be dismissed for failure to
timely add new parties and failure to effect timely service of process. (Doc. 63). Plaintiff did not
respond within the time provided.
II.

GMC

Plaintiff’s claims against GMC should be dismissed for failure to effect timely service of
process. GMC was first named a Defendant in this matter on November 16, 2015, when Plaintiff
filed Plaintiff’s Amended Complaint. (Doc. 27). At that time, Rule 4(m) of the Federal Rules of
Civil Procedure imposed a 120-day deadline for service of process. Fed. R. Civ. P. 4(m) (2007)
(effective until Dec. 1 2015). 1 From the record, it does not appear that summons was issued to
GMC, let alone served on GMC, within 120 days of November 16, 2015. Plaintiff’s claims
against GMC should therefore be DISMISSED WITHOUT PREJUDICE. See Fed. R. Civ. P.
4(m).
III.

JOHN/JANE DOES 1-5

Plaintiff’s claims against John/Jane Does 1-5 should be dismissed. The deadline for
amending pleadings in this case was May 27, 2016. (Doc. 44). Plaintiff has not demonstrated
good cause to modify these deadlines. See Fed. R. Civ. P. 16(b)(4). As Plaintiff’s Amended
Complaint has not been amended to name these John/Jane Does 1-5 within the time limits set,
and as Plaintiff has not effected timely service of process on these unnamed Defendants, his
claims against them should be DISMISSED WITHOUT PREJUDICE. See Fed. R. Civ. P.
4(m); Thomas v. Bivens, No. 3:09-CV-62, 2011 WL 32207, at *8 (E.D. Tenn. Jan. 5, 2011) (“A

1

Beginning December 1, 2015, this deadline was shortened from 120 days to 90 days. Even applying the 120-day
version of the rule, dismissal is nonetheless proper.

2

civil action is commenced against a John Doe defendant when the complaint is amended under
Rule 15 to specifically name and identify that defendant by his true name and the plaintiff effects
service of process upon that named defendant in compliance with Rule 4.”).
IV.

RECOMMENDATION

For the foregoing reasons, the undersigned RECOMMENDS that Plaintiff’s claims
against Defendants GMC and John/Jane Does 1-5 be DIMSISSED WITHOUT PREJUDICE.
As these are the only remaining Defendants in this suit and the time to amend the pleadings has
long since passed, the undersigned likewise RECOMMENDS this case be DISMISSED.
The parties have fourteen (14) days after being served with a copy of this Report and
Recommendation (“R&R”) to serve and file written objections to the findings and
recommendation proposed herein. A party shall respond to the objecting party’s objections to
this R&R within fourteen (14) days after being served with a copy thereof. Failure to file specific
objections within fourteen (14) days of receipt of this R&R may constitute a waiver of further
appeal. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Entered this 10th day of April, 2017.

/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

3