Sandoval v. American Laser Skin Care, LLC

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 16 Report and Recommendations, The Court can dismiss a case sua sponte under Federal Rule of Civil Procedure 41 for failure to prosecute. Accordingly the Court ADOPTS the Magistrates Report & Recommendation and DISMISSES WITHOUT PREJUDICE Plaintiff's Complaint. Signed by Judge David A. Ezra. (wg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

LINA JANE SANDOVAL,

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Plaintiff,
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vs.
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AMERICAN LASER SKIN CARE,
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LLC,
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Defendant.
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________________________________ §

CV. NO. 5:14-CV-338-DAE

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION
Before the Court is the Report and Recommendation filed by
Magistrate Judge Pamela A. Mathy on October 7, 2014. (“R&R,” Dkt. # 16.) Any
party who desires to object to a Magistrate Judge’s findings and recommendations
must serve and file written objections within fourteen days after being served with
a copy of the findings and recommendation. Fed. R. Civ. P. 72(b)(2). The Court
must conduct a de novo review of any of the Magistrate Judge’s conclusions to
which a party has specifically objected. See 28 U.S.C. § 636(b)(1)(C) (“A judge of
the court shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”).
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Findings to which no specific objections are made do not require de novo review;
the Court need only determine whether the Report and Recommendation is clearly
erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th
Cir. 1989). In the instant case, because no party has objected to the Magistrate
Judge’s Report and Recommendation, the Court reviews the findings only to
determine if they are clearly erroneous or contrary to law.
On April 16, 2014, the Magistrate Judge granted in part Plaintiff’s
motion for leave to proceed in forma pauperis, denied Plaintiff’s motion for
appointment of counsel, and directed Plaintiff to prepare and submit summons
forms to effectuate service of Plaintiff’s civil complaint. (Dkt. # 3.) Plaintiff
subsequently prepared summons forms on April 18, 2014. (Dkt. # 5.) The United
States Postal Service returned the unexecuted summons forms on July 28, 2014,
noting that the address was insufficient and that it was unable to forward the mail
to a different address. (Dkt. # 5 at 2.) On July 30, 3014, the Magistrate Judge
entered an order and amended order reminding Plaintiff of the need to ensure
timely prosecution of her case and her duty to properly serve Defendant. (Dkts.
## 7, 8.) Because Plaintiff did not comply with the terms of the July 30 amended
order, failed to timely prosecute her case, and failed to obtain timely and effective
service of process on Defendant, the Magistrate Judge issued a Report and
Recommendation recommending dismissal of Plaintiff’s claims on August 14,
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2014. (Dkt. # 9.)
On the same day, Plaintiff personally appeared in the District Clerk’s
Office with a summons form listing a new address for Defendant. (Dkt. # 13.) Out
of fairness to Plaintiff, the Magistrate Judge withdrew the Report and
Recommendation and reiterated the requirements of timely and effective service.
(Dkt. # 12.) On August 28, 2014, the summons form was returned as served to
“Cabellero” at Defendant’s Broadway address. (Dkt. # 15.) Neither Plaintiff nor
Defendant have submitted any additional filings.
On October 7, 2014, the Magistrate Judge issued the instant Report
and Recommendation, recommending three proper bases for dismissal in this case:
first, Plaintiff failed to secure timely service of process on Defendant; second,
Plaintiff failed to secure effective service of process on Defendant; and third,
Plaintiff failed to timely prosecute her case. (Dkt. # 16 at 8–13.)
The Magistrate Judge first concluded that the service of process was
untimely because Plaintiff failed to comply with Federal Rule of Civil Procedure
4(m)’s presumptive 120-day period for effective service of process. (Id. at 8.)
Looking to the record, the Magistrate Judge determined that the presumptive
period expired on August 16, 2014, 120 days after Plaintiff filed her complaint on
April 16, 2014. (Id.) Because Plaintiff provided no reasons why the Court should
extend the 120-day period, the Magistrate Judge concluded that service of process
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was untimely. (Id. at 8–9.) The Court agrees.
Second, the Magistrate Judge concluded that service of process was
ineffective because Plaintiff’s first attempt to serve Defendant was never delivered
and there is no evidence that the “Caballero” who signed for Plaintiff’s second
summons was the registered agent for Defendant, its president, its vice president,
or its manager, if defendant is a manager-managed LLC, as required under Texas
law. (Id. at 10–12.) The Court agrees.
Finally, the Magistrate Judge concluded that Plaintiff failed to timely
prosecute her case, noting that if Plaintiff believed that the August 23, 2014
summons constituted effective service, Plaintiff should have moved for entry of
default and default judgment based on Defendant’s failure to file an answer. (Id. at
13.) The Court agrees.
Because each of these reasons are proper bases for the Court to
dismiss Plaintiff’s case sua sponte, the Court finds that the Report and
Recommendation is neither clearly erroneous nor contrary to law. Fed. R. Civ. P.
4(m) (requiring dismissal sua sponte or by motion when the defendant is not
effectively served within 120 days and there is no good cause for the failure);
Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (holding that the court can
dismiss a case sua sponte under Federal Rule of Civil Procedure 41 for failure to
prosecute). Accordingly, the Court ADOPTS the Report and Recommendation
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(Dkt. # 16). Plaintiff’s complaint is hereby DISMISSED WITHOUT
PREJUDICE.
IT IS SO ORDERED.
DATED: San Antonio, Texas, February 2, 2015.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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