Idemia Identity & Security USA LLC v. Migneco et al

Filing 38

REPORT AND RECOMMENDATION re 1 Complaint, filed by Idemia Identity & Security USA LLC. The Magistrate Judge recommends that the complaint against the Defendant Joseph Migneco, an individual, be dismissed without prejudice for failure to obtain service of process within the time allowed by the Court. Signed by Magistrate Judge Joe Brown on 7/2/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
IDEMIA IDENTITY & SECURITY
USA LLC,
Plaintiff
v.
JOSEPH MIGNECO;
BIOMETRICS4ALL, INC.,
Defendants
TO:

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No. 3:18-0239
Chief Judge Campbell/Brown
Jury Demand

THE HONORABLE WILLIAM L. CAMPBELL, JR.
REPORT AND RECOMMENDATION
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that the case against Joseph Migneco be dismissed
without prejudice for failure to obtain service of process under
Rule 4(m) of the Federal Rules of Civil Procedure.1
BACKGROUND
As previously noted by the undersigned this case was
filed on February 26, 2018 (Docket Entry 1) and at the request of
the parties time for the Corporate Defendant to respond has been
extended and an initial case management conference contingent
(Docket Entries 21, 25, 27 and 32).
When the undersigned granted the last extension on May2,
2018, it was noted that while the Court appreciated the parties’
efforts to resolve the case early, that the extension to May 31,

1

The Corporate Defendant has been served and the matter is set for
a case management conference on July 12, 2018, at 11:30 a.m. (Docket
Entry 37).

2018,

would

be

last

absent

extraordinary

circumstances.

The

Defendant Migneco has not been served and was no longer actively
participating in the company’s business.

In their answer (Docket

Entry 36 at par. 4) the Defendant denies that he continues to
employ Defendant Migneco.
In view of these statements it appears that the relief
sought by the Plaintiff in their preliminary injunction is moot and
the Court may well wish to terminate the pending motion (Docket
Entry 6) as moot for that reason.2
LEGAL DISCUSSION
The Court must be able to control its docket and Rule
4(m) speaks in mandatory terms requiring the dismissal without
prejudice where a plaintiff fails to obtain service of process
within 90 days or within time allowed by the Court for service. In
this case, the undersigned has granted numerous extensions to
obtain service of process while the parties attempted to resolve
the case. Unfortunately, despite advising that they would obtain
service by the end of May, and then given a final deadline of June
22, 2018, no service of process appears to have been obtained
against the individual defendants.

2

When the May 31, 2018, deadline for service of process on Defendant
Migneco expired the undersigned entered an order (Docket Entry 37) giving
the Plaintiff until June 22, 2018, to complete service. They were advised
that failure to do so would result in a recommendation that the case
against Defendant Migneco be dismissed for failure to obtain service in
accordance with Rule 4. As of the date of this report and recommendation
no service of process has been obtained. The case is set for a case
management conference on July 16, 2018, to enter a scheduling order as
to the remaining Corporate Defendant.

2

The Plaintiff was specifically warned of the need to
accomplish this service of process and the consequence of failing
to do so. They have proffered no request for additional time and
the undersigned is aware of no basis for such a request.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that the complaint against the Defendant Joseph Migneco,
an individual, be dismissed without prejudice for failure to obtain
service of process within the time allowed by the Court.
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 2nd day of July, 2018.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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