Goodman v. UPA et al

Filing 11

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that this case be dismissed without prejudice for failure to obtain service of process as required by Federal Rule of Civil Procedure 4(m). Signed by Magistrate Judge Joe Brown on 2/28/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
WANDA Y. GOODMAN,

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Plaintiff
v.
UPA, et al.,
Defendants
TO:

No. 3:16-2780
Judge Trauger/Brown

THE HONORABLE ALETA A. TRAUGER
REPORT AND RECOMMENDATION
For

the

reasons

stated

below

the

Magistrate

Judge

recommends that this case be dismissed without prejudice for failure
to obtain service of process as required by Federal Rule of Civil
Procedure 4(m).
BACKGROUND
The Plaintiff proceeding pro se filed a complaint against
six Defendants and paid the filing fee in the amount of $400 (Docket
Entries 1 and 2) on October 24, 2016. The Clerk mailed the Plaintiff
an information packet and service packets also on October 24, 2016,
and the matter was referred to me for case management and a report
and recommendation on any pretrial motion (Docket Entry 5) on October
27, 2016.
The docket sheet reflected no activity by the Plaintiff
through January 31, 2017. At that point I entered an order directing
the Plaintiff to show cause within 14 days why I should not recommend
that her case be dismissed for failure to obtain service of process
within 90 days as required by Federal Rule of Civil Procedure 4(m)

(Docket Entry 8). The record reflects that this order was received
through certified mail by the Plaintiff on February 8, 2017 (Docket
Entry 10).
As of the date of this report and recommendation the
Plaintiff has failed to respond to the show cause order and has not
returned any proof that she accomplished service of process on any of
the Defendants.
LEGAL DISCUSSION
The Federal Rule of Civil Procedure 4(m) is quite specific.
It provides that if the Defendant is not served within 90 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
the defendant or order that service be made within a specified time.
In this case the complaint was filed on October 24, 2016,
and as of the date of this report and recommendation the Plaintiff
has not shown service of process. The Plaintiff was given notice and
an opportunity to explain why service of process had not been
obtained by the Court, and the Plaintiff has provided no information
in response to the show cause order.
The Plaintiff has failed to show any cause for not serving
the Defendants and has asked for no additional time.
The Court must be able to control its docket and insure
that cases are disposed of as promptly as reasonably possible. A case
cannot proceed until the Plaintiff serves at least one defendant. The
Plaintiff, without explanation, has failed to do so in this case.

2

RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that this case be dismissed without prejudice for failure
to obtain service of process as required by Federal Rule of Civil
Procedure 4(m).1
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any party has 14 days from receipt 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 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

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. 140 106 S. Ct. 466, 88
L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 28th day of February, 2017.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

1

Although the dismissal is without prejudice, the Plaintiff may be
barred from refiling if the statute of limitations has run.

3