Opinion
No. CV-03-3040 VRW.
June 30, 2004
ORDER
On June 3, 2004, the court ordered plaintiff Noel Ballon to show cause by June 18, 2004, why the court should not dismiss his action pursuant to FRCP 41(b). OSC (Doc #11). Plaintiff filed an untimely response on June 21, 2004, requesting court-appointed counsel. Pl Resp (Doc # 15). Plaintiff failed to explain, however, why the action should not be dismissed for failure to prosecute, save for the fact that plaintiff has failed to obtain counsel. Plaintiff requests a pause or "time out" in the litigation.
Plaintiff has also failed to provide the court with any proof that he has served defendant with a copy of the summons and complaint. Pursuant to FRCP 4(m), such service is required to be completed within 120 days of filing the complaint. Rule 4(m) allows the court to dismiss the case on its own initiative when a plaintiff fails to comply with the 120-day rule, provided that notice has been given to plaintiff. At the December 16, 2003, case management conference (CMC), the court apprised plaintiff that he is required to effect service of the summons and complaint on defendant. See Doc # 7.
Plaintiff has consistently failed to take the steps necessary to prosecute this action. The 120-day time period prescribed by Rule 4(m) expired almost seven months ago, and the court advised plaintiff regarding his duty to comply with Rule 4(m) more than six months ago. Furthermore, plaintiff has failed to articulate a reason why this case should not be dismissed for failure to prosecute. Plaintiff has had a lengthy period within which to find counsel or prosecute the case himself. Given this situation, the court believes the appropriate course of action is to DISMISS this case without prejudice. The clerk is directed to close the file and terminate all pending motions.
IT IS SO ORDERED.