J&J Sports Productions v. Cabana Club et al
MEMORANDUM DECISION dismissing case without prejudice. Signed by Magistrate Judge Dustin B. Pead on 05/29/2013. (asp)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
J & J SPORTS PRODUCTIONS, INC.,
Case No. 2:10-cv-00397
DEBRA R. PHILLIPS aka DEBBIE
Magistrate Judge Dustin Pead
Plaintiff J& J Sport Productions (Plaintiff) filed its original Complaint on May 3, 2010
(Dkt. No. 2.) Thereafter, Plaintiff filed an Amended Complaint on August 6, 2010 (Dkt. No. 3.)
On December 17, 2010, the Court granted Plaintiff’s Motion For Extension of Time, giving
Plaintiff an additional 120 days within which to serve Defendants (Dkt. No. 7.)
On June 27, 2011, the Court issued an Order to Show Cause inquiring why, despite the
extension of time, the Defendants had still not been served with the Complaint (Dkt. No. 8.)
Plaintiff responded that it had attempted to effectuate service, but was unable to do so (Dkt. No.
9.) Consequently, Plaintiff requested another extension of time (Dkt. No. 10.), which the Court
granted providing Plaintiff an additional 60 days within which to serve the Defendants (Dkt. No.
During a status conference held on January 31, 2012, Plaintiff indicated that it intended to
amend its complaint (Dkt. No. 23.). The Court requested that any motion related to amendment
be filed expeditiously. Id. Five months later Plaintiff filed its Motion to Amend seeking to
dismiss all named Defendants (Morris Sosa, M&S Management, Inc., Cabana Club), and to add
Debra R. Phillips (aka Debbie Phillips) as a new Defendant (Dkt. No. 24.) Plaintiff’s Motion to
Amend was granted on October 24, 2012 (Dkt. No. 26.) However, it was not until three months
later, on January 2, 2013, that Plaintiff actually filed its Amended Complaint with the Court
(Dkt. No. 28.) Further, as of this date, there is no indication that Defendant has been timely
served with the Amended Complaint. See Fed. R. Civ. P. 4(c)(1) (“The plaintiff is responsible
for having the summons and complaint served within the time allowed.”). Nor has Plaintiff filed
any extension of the period of time to effect service, let alone in advance of the expiration of the
120-day period prescribed. See Fed. R. Civ. P. 4(m) (giving plaintiff 120 days after the
complaint is filed to serve defendant).
The Court outlines the prolonged history of this case in order to highlight the fact that
nearly three years after the action was originally filed, the case has not moved forward in any
significant manner such that procedurally the action remains stymied at the initial stages of
litigation and Defendant has still not been served with a copy of the operative complaint. Given
these circumstances along with the fact that numerous extensions that have previously been
granted, the Court finds it appropriate to dismiss the action without prejudice pursuant to Federal
Rule of Civil Procedure 4(m). See Fed. R. Civ. P. 4(m) (“If a defendant is not served within 120
days after the complaint is filed, the court. . . must dismiss the action without prejudice against
the defendant or order that service be made within a specified time.”). In ordering dismissal
without prejudice, the Court recognizes that under these circumstances the Rules also
contemplate the issuance of an order to show cause requiring Plaintiff to explain why the case
should not be dismissed. Here, however, where despite the issuance of an order to show cause
nearly two years ago the case has still not moved forward, the Court concludes that dismissal
without prejudice is the appropriate course of action.
Accordingly, IT IS HEREBY ORDERED for the reasons stated herein, that the case be
dismissed without prejudice.
DATED this 29th day of May, 2013,
Dustin B. Pead
U.S. Federal Magistrate Judge
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