Akin v. Jaspan Medical Systems et al

Filing 34

ORDER DISMISSING CASE WITHOUT PREJUDICE. Signed by Chief Judge J. Daniel Breen on 4/1/15. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
UNITED STATES OF AMERICA, STATE
OF TENNESSEE, STATE OF CALIFORNIA,
STATE OF MICHIGAN and KERI AKIN,
Plaintiffs,
v.

No. 14-1050

JASPAN MEDICAL SYSTEMS and
TINA B. JASPAN,
Defendants.
_____________________________________________________________________________
ORDER DISMISSING CASE WITHOUT PREJUDICE
_____________________________________________________________________________
This matter was initiated by the Plaintiff, Keri Akin, on behalf of the United States and qui
tam states California, Michigan and Tennessee, on March 4, 2014 against the Defendants, Jaspan
Medical Systems and Tina B. Jaspan. In November 2014, after the United States and the qui tam
states declined to intervene herein, the Court unsealed the complaint and directed that service be
effected on the Defendants. (D.E. 31-32.) According to the docket, no summonses were issued and
the complaint was not served. On March 16, 2015, the Court directed Akin to show cause within
eleven days why this case should not be dismissed under Rule 4(m) of the Federal Rules of Civil
Procedure. (D.E. 33.) The Court also advised the Plaintiff that failure to timely respond to the order
would result in dismissal of this matter without prejudice. The time period set forth by the Court
has expired and no response has been filed.
Rule 4(m) provides that, "[i]f 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 against that defendant or order that service be made within a specified time." As

the Court explained in its order, in a qui tam action, the 120-day period begins to run when the
complaint is unsealed. The docket reflects that no filings have been made in this case, including a
response to the show cause order, since the Court's March 16, 2015 directive. As the Plaintiff has
not so much as attempted to establish good cause for her failure to comply with Rule 4(m), her
complaint is DISMISSED without prejudice. See Younker v. Ohio Dep't of Rehab. & Corr., No.
2:13-cv-746, 2014 WL 1764615, at *2 (S.D. Ohio Apr. 30, 2014) ( where plaintiff made no attempt
to demonstrate good cause for failure to comport with mandate of Rule 4(m), dismissal without
prejudice warranted).
IT IS SO ORDERED this 1st day of April 2015.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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