Hull et al v. Ness et al

Filing 44

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Complaint, filed by Bryan Hull. Signed by Magistrate Judge Don D. Bush on 7/25/2011. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
BRYAN HULL, and
THE CLAY COMPANY INCORPORATED
Plaintiffs,
vs.
STEVEN NESS, TRANSGLOBAL
DEVELOPMENT LLC, LAKEVIEW DOWNS
EQUESTRIAN, LP, LAKEVIEW
DEVELOPMENT, LLC, PARKVIEW SOUTH
L.L.C., PVP LLC, PHIL SHIRREFFS, and
ACTUATOR ASSOCIATES INCORPORATED,
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§

Case No. 4:10-cv-153

REPORT AND RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
This case was set for final pretrial before United States District Judge Richard A. Schell on
July 5, 2011. On June 28, 2011, Judge Schell dismissed Defendants PVP, LLC and Parkview South,
LLC from the case. These two Defendants were the only Defendants who had appeared in the suit.
According to record in the case, while summons was issued for some of the remaining defendants
on April 19, 2010, Defendants Steven Ness, Transglobal Development LLC, Lakeview Downs
Equestrian, LP, Lakeview Development, LLC, Phil Shirreffs, and Actuator Associates Incorporated
have not appeared or been served with process.
On July 19, 2011, the Court held a show cause hearing as to why these Defendants had not
been served. Attorney for Plaintiff appeared as directed. For the reasons set forth below, the Court
finds that the remaining claims in this case should be dismissed without prejudice.

1

This case was filed on March 3, 2010. Under Rule 4(m) of the Federal Rules of Civil
Procedure, the Court must dismiss an action without prejudice if a defendant is not served within 120
days after the filing of the complaint. FED . R. CIV . P. 4(m). The Rule is silent as to when a plaintiff
must file an executed return of service and whether the return of service should be filed with the
Court reasonably after the close of the 120-day period. Nonetheless, it is clear that, in this case,
Plaintiff was required to serve all Defendants by June 28, 2010, unless it could show good cause for
failing to serve.
To date, no executed return of service is on file for any of the remaining Defendants in the
suit. On July 18, 2011, Plaintiff filed a notice indicating that service had been timely made on
several of the Defendants. See Dkt. 40. Plaintiff did not, however, file or attach any executed
returns of service.
At the July 19, 2011 hearing, Plaintiff’s counsel argued that Defendants Steven Ness and
Lakeview Development, LLC were served on May 3, 2010 and that Defendant Phil Shirreffs was
served on May 12, 2010. Plaintiff claims that the failure to file the returns of service was a result
of counsel’s oversight and lack of support staff. Notably, however, Plaintiff’s counsel was informed
of his oversight in the Court’s June 29, 2011 order setting the show cause order but failed to take any
action to remedy it prior to the hearing. At the hearing, Plaintiff’s counsel offered copies of the
purported returns of service as to Defendants Steven Ness, Lakeview Development, LLC, and Phil
Shirreffs. While apparently executed by a process server, the returns of service offered by counsel
were not the ones issued by the Clerk of Court. Therefore, the Court cannot conclusively find that

2

service was properly made within the 120-day period. Even if they have been served, Plaintiff did
not diligently pursue his claims and has wholly failed to prosecute his claims against them.
Therefore, pursuant to Rule 4(m) and Rule 41(b), the Court finds the claims against them should be
dismissed without prejudice. As to Defendants Transglobal Development LLC, Lakeview Downs
Equestrian, LP, and Actuator Associates Incorporated, Plaintiff’s counsel conceded that they have
never been served. Therefore, Rule 4(m) is clear that the claims against them should be dismissed
without prejudice. Given the delay in service and prosecution as to the Defendants who have not
yet appeared, the Court finds that all remaining claims in this matter should be dismissed without
prejudice.
Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge. 28
U.S.C.A. § 636(b)(1)(C).
Failure to file written objections to the proposed findings and recommendations contained
in this report within fourteen days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
.

findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th
Cir. 1988).

SIGNED this 25th day of July, 2011.
.

____________________________________
DON D. BUSH
3
UNITED STATES MAGISTRATE JUDGE