Bank of America, National Association v. Rodriguez

Filing 9

ORDER DISMISSING CASE. Signed by Judge Xavier Rodriguez. (aej)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
BANK OF AMERICA, NATIONAL
ASSOCIATION,
Plaintiff,
v.
MARTIMIANO S. RODRIGUEZ,
Defendant.

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Civil Action No. SA-15-CV-495-XR

DISMISSAL ORDER
On this date the Court considered the status of the above-captioned case. The Court
finds that this cause of action was commenced by the filing of the Plaintiff’s complaint on
June 16, 2015. On October 30, 2015, the Court issued a Show Cause Order requiring the
Plaintiff to show good cause as to why the Defendant had not yet been served. Docket no. 5.
Plaintiff responded on November 10, 2015, and requested that it be given an extension of time
to serve the Defendant.
Even though over 120 days have passed since the filing of the lawsuit and over 40
days have passed since the Court issued a Show Cause Order, the Court still has no record
that the Defendant named by the Plaintiff in this case has been served or has agreed to waive
service. Rule 4(c) of the Federal Rules of Civil Procedure provides in pertinent part:
The plaintiff is responsible for having the summons and
complaint served within the time allowed by Rule 4(m) and
must furnish the necessary copies to the person who makes
service.

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FED. R. CIV. P. 4(c)(1). Proof of service must be made to the court by filing the server’s
affidavit. FED. R. Civ. P. 4(l)(1). Rule 4 further provides that:
If 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.
But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.
FED. R. CIV. P. 4(m).
The 120-day time period for service has more than expired in this case and there is no
indication that Defendant has been properly served or has agreed to waive service, despite
Plaintiff being given notice and an extra 40 days. Therefore, this Court “must dismiss the
action without prejudice.” Id., see also Lepone-Dempsey v. Carroll County Com'rs, 476 F.3d
1277, 1281 (11th Cir. 2007).
CONCLUSION
The Court DISMISSES all claims in this case without prejudice pursuant to Rule
4(m). Accordingly, the Clerk’s office is directed to CLOSE this case.
It is so ORDERED.
SIGNED this 22nd day of December, 2015.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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