Power Line Industries v. Spartan Tool
MEMORANDUM DECISION and Order Dismissing Plaintiff's Complaint 2 Without Prejudice for Failure to Prosecute. See order for further details. Signed by Judge Ted Stewart on 10/11/17. (jlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, DIVISION
POWER LINE INDUSTRIES, a Utah
MEMORANDUM DECISION AND
Case No. 2:16-CV-242 TS
SPARTAN TOOL, a Delaware limited
District Judge Ted Stewart
Plaintiff Power Line Industries (“Plaintiff”) filed a Complaint against Defendant Spartan
Tool (“Defendant”) on March 28, 2016. On June 17, 2016, Plaintiff filed a Motion for Extension
of Time to Serve Summons & Complaint on Defendant. Magistrate Judge Furse granted the
extension on June 20, 2016, allowing Plaintiff until August 23, 2016, to serve Defendant.
Plaintiff did not serve Defendant in the allotted time.
On November 10, 2016, Magistrate Judge Furse issued an order directing Plaintiff to
show cause as to why its case should not be dismissed for failure to effect service. The Order
further directed Plaintiff to respond in writing by November 24, 2016, and warned that failure to
do so would result in dismissal of the Complaint. Plaintiff failed to respond.
Rule 4(m) of the Federal Rules of Procedure states, “[i]f a defendant is not served within
90 days after the complaint is filed, the court . . . must dismiss the action without prejudice
against that defendant or order that service be made within a specified time,” unless “the plaintiff
shows good cause for the failure.” The ninety-day time period set by Rule 4(m) has long since
passed. In accordance with Tenth Circuit precedent, the Court, via Magistrate Judge Furse,
afforded Plaintiff an opportunity to show cause why its Complaint should not be dismissed. 1
Plaintiff’s time to respond to Magistrate Judge Furse’s Order to Show Cause has long since
It is therefore
ORDERED that Plaintiff’s Complaint (Docket No. 2) is dismissed without prejudice for
failure to prosecute.
Dated this 11th day of October, 2017.
BY THE COURT:
United States District Judge
Self v. Fresenius Med. Care, 84 F. App'x 54, 56 (10th Cir. 2003) (“We held that before
the district court may dismiss Plaintiff’s compliant without prejudice for failure to prosecute
under Federal Rule of Procedure 4(m), it must first afford him an opportunity to show cause why
the complaint should not be dismissed.”).
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