Opinion
Civil Action No. 9:18-2326-RMG-BM
02-26-2019
Janice Barnwell, Plaintiff, v. Magellan Health, Inc., Magellan Health Services, Inc., Magellan Healthcare, Inc., Magellan Healthcare Group LLC, Douglas Fotia, Jennifer Frierich, Barry Morgan Smith, Cheryl Simms, Christie Jeter, Honorable Richard Spencer, and United States Marine Corps, Defendants.
REPORT AND RECOMMENDATION
This case has been filed by the Plaintiff, pro se, alleging various claims against the named Defendants. The file reflects that the Complaint was filed on August 21, 2018, and the summons were issued on November 27, 2018, with Plaintiff being specifically instructed that she was responsible for service of Process under Rule 4. See Order (Court Docket No. 14).
Pursuant to Rule 4(m), Fed.R.Civ.P., "[i]f a defendant is not served within 90 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 . . . [b]ut if the Plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Here, the time for service began to run on November 27, 2018, and the ninety (90) day period for service provided by Rule expired on February 25, 2019. However, there is no evidence in the file that the Defendants have ever been served with process in this case.
See Order (Court Docket No. 14), p. 1. See also Robinson v. Clipse, 602 F.3d 605, 608-609 (4th Cir. 2010) [Time tolled during initial review].
The Summons have been mailed to Plaintiff three (3) times to two (2) different addresses. None of these mailing has been returned undeliverable.
Unless Plaintiff has made proper service on the Defendants, this case is subject to dismissal. Therefore, Plaintiff is herein specifically advised and placed on notice that, in response to this Report and Recommendation, she is to provide the Court with proof of service on the Defendants, or present good cause to the Court for any failure to serve the Defendants, within fourteen (14) days of the filing of this Report and Recommendation. Failure to do so may result in this case being dismissed.
Conclusion
The Clerk is directed to mail this Report and Recommendation to Plaintiff's last known address. If in response to this Report and Recommendation, Plaintiff submits to the Court proof of timely service on the Defendants, then in that event IT IS ORDERED that this Report and Recommendation be vacated, and that the file be returned to the undersigned for further proceedings. However, in the event Plaintiff fails to submit to the Court proof of service on the Defendants, or to demonstrate good cause for having failed to do so, within the time granted herein, it is recommended that this case be dismissed, without prejudice, pursuant to Rule 4(m), Fed.R.Civ.P.
In the event Plaintiff has failed to serve the Defendants with service of process, but submits material to the Court asserting good cause for such failure, whether or not to accept Plaintiff's assertions of good cause shall be in the sole discretion of the District Judge in his review of this Report and Recommendation. See e.g., Epstein v. White, 1991 U.S. Dist. LEXIS 14888, 1991 WESTLAW 214152 (N.D.Ill., October 18, 1991); and cf. Mid-Continent Wood Products, Inc., v. Harris, 936 F.2d 297, 1991 U.S. App. LEXIS 13888 (7th Cir. 1991).
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge February 26, 2019
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).