Davis v. Hubgroup
Filing
21
Order Accepting Findings and Recommendations. The court certifies that any appeal of this action would not be taken in good faith. re: 19 Findings and Recommendations on Case re: 3 Complaint filed by Kevin J Davis. (Ordered by Judge Sam A. Lindsay on 5/18/2023) (svc)
Case 3:22-cv-01337-L-BN Document 21 Filed 05/18/23
Page 1 of 2 PageID 100
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KEVIN DAVIS,
Plaintiff,
v.
HUBGROUP,
Defendant.
§
§
§
§
§
§
§
§
§
Civil Action No. 3:22-CV-1337-L-BN
ORDER
On April 11, 2023, The Findings, Conclusions and Recommendation of the United States
Magistrate Judge (“Report”) (Doc. 19) was entered, recommending that the court, pursuant to
Federal Rules of Civil Procedure 4(m) and 41(b), dismiss without prejudice this action, which has
been pending eleven months, as a result of Plaintiff’s continued failure to effect service on
Defendant and failure to prosecute and comply with a court order. On April 27, 2023, Plaintiff
filed a one-page response to the Report. Instead of objecting or taking issue with the magistrate
judge’s findings, conclusions, and recommendation, Plaintiff argues the merits of his employment
law case and asserts that he cannot afford an attorney.
The court previously denied a request by Plaintiff to proceed in forma pauperis, and, even
if he qualified to proceed in forma pauperis, there is no automatic right to appointment of counsel
in civil cases. See Delaughter v. Woodall, 909 F.3d 130, 141 (5th Cir. 2018). Moreover, as the
magistrate judge correctly noted, Plaintiff’s pro se status does not excuse him from complying
with applicable rules of procedure. In this case, Plaintiff had eleven months to properly effect
service, and he was previously warned several months ago about the consequences of failing to
effect service on Defendant. The magistrate judge also explained in detail in his current Report
Order – Page 1
Case 3:22-cv-01337-L-BN Document 21 Filed 05/18/23
Page 2 of 2 PageID 101
what Plaintiff must do to properly serve Defendant in accordance with federal and state law. There
is no indication from his response to the Report, however, that he has made any effort to properly
serve Defendant since the magistrate judge’s Report was entered more than thirty days ago.
Thus, having considered the pleadings, record in this case, and Report, the court determines
that the findings and conclusions of the magistrate judge are correct, and accepts them as those of
the court. Accordingly, the court, pursuant Federal Rules of Civil Procedure 4(m) and 41(b), the
court dismisses without prejudice this action because of Plaintiff’s continued failure to effect
service on Defendant and failure to prosecute and comply with a court order.
The court prospectively certifies that any appeal of this action by Plaintiff would not be
taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). In support of this
certification, the court incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197,
202 and n.21 (5th Cir. 1997). Based on the Report, the court concludes that any appeal of this
action by Plaintiff would present no legal point of arguable merit and would, therefore, be
frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). In the event of an appeal, Plaintiff
may challenge this certification by filing a separate motion to proceed in forma pauperis on appeal
with the clerk of the United States Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at
202; Fed. R. App. P. 24(a)(5).
It is so ordered this 18th day of May, 2023.
_________________________________
Sam A. Lindsay
United States District Judge
Order – Page 2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?