20 Cap Fund I LLC v. First Franklin Financial Corporation et al
ORDER DISMISSING CERTAIN DEFENDANTS FOR WANT OF PROSECUTION denying 11 MOTION for Extension of Time Complete Service, David W Morris, Maxine E Bernal and First Franklin Financial Corporation terminated(Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
20 CAP FUND I LLC,
FIRST FRANKLIN FINANCIAL
CORPORATION, et al,
February 23, 2017
David J. Bradley, Clerk
§ CIVIL ACTION NO. 3:16-CV-303
ORDER DISMISSING CERTAIN DEFENDANTS
FOR WANT OF PROSECUTION
Plaintiff, 20 Cap Fund LLC, filed its complaint in this Court on October 24, 2016,
naming four defendants. Dkt. 1. An order setting an initial pretrial and scheduling conference
was issued, setting the initial conference on February 10, 2017. Dkt. 2. Plaintiff even filed a
Certificate of Interested Parties on November 10, 2016. Dkt. 3. Nonetheless, Plaintiff did not
request issuance of summons until January 10, 2017, over 75 days after it filed suit. On
February 9, 2017, this Court issued notice that Plaintiff was required to serve and file proof of
service upon all four defendants on or before Friday, February 17, 2017 or else the case was
subject to dismissal. Dkt. 9. This extended deadline was over 115 days after the date the lawsuit
was filed in this Court.
The day before the Court’s deadline for filing proof of service, Plaintiff then filed a
motion requesting additional time to complete service. Dkt. 11. The motion was unverified and
simply affirmed that the service upon three of the four Defendants was delayed due to
“inadvertence, mistake, or excusable neglect.”
Plaintiff has since made an effort to file “proof of service” for three defendants in this
case: Alamo Title Insurance (Dkt. 10) filed on February 14, 2017; Maxine E. Bernal (Dkt. 12)
filed on February 20, 2017; and David W. Morris filed on March 21, 2017 (Dkt. 13). The first,
Alamo Title, was filed before the Court’s deadline of February 17, 2017. The others were not.
Further, Plaintiff has not yet filed any proof of service upon “First Franklin Financial
Corporation,” despite the summons being issued weeks ago. Nor has Plaintiff set out any specific
facts that would evidence “good cause” for these failures.
When a plaintiff does not serve a defendant within the required time period, the Court is
required to dismiss the case unless the plaintiff shows good cause for the failure. FED. R. CIV. P.
4(m). The plaintiff bears the burden of demonstrating good cause. Newby v. Enron Corp., 284
Fed. App’x. 146, 149 (5th Cir. 2008). Good cause must rise above “[s]imple inadvertence or
mistake of counsel or ignorance of the rules.” Id. Plaintiff must demonstrate “good faith ... and
some reasonable basis for noncompliance within the time specified.” Id.
Accordingly, the Court hereby finds Plaintiff has not carried its burden and that service
upon First Franklin Financial Corporation, Maxine E. Bernal, and David W. Morris is untimely.
Given the age of the case, the lack of any substantive effort to explain the delay, and the
requirements of the Federal Rules of Civil Procedure, the Court declines to further extend the
time for service. Accordingly, Plaintiff’s claims against First Franklin Financial Corporation,
Maxine E. Bernal, and David W. Morris are DISMISSED, without prejudice. Further,
Plaintiff’s motion for extension of time to complete service (Dkt. 11) is DENIED.
SIGNED at Galveston, Texas, this 23rd day of February, 2017.
George C. Hanks Jr.
United States District Judge
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