Opinion
Civil Action No. 15-205ERIE
03-07-2017
JOHN GRAVES, Plaintiff, v. JOHN WETZEL, et al, Defendants.
District Judge Rothstein
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is recommended that Defendant O'Rourke should be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure due to Plaintiff's failure to accomplish service on her. The Clerk of Courts should be directed to close this case.
II. REPORT
This civil rights action was filed in this Court on August 14, 2015. Since the filing of this action, Plaintiff has failed to accomplish service on Defendant Beverly O'Rourke.
Service by the U.S. Marshal Service was ordered by this Court on September 1, 2015. ECF No. 5. Service has not been accomplished because the whereabouts of Defendant O'Rourke are unknown to the parties.
Federal Rule of Civil Procedure 4(m) provides that:
If 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 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.Id.
It has been well over ninety days since the filing of this case. Rule 4(m) requires a dismissal without prejudice. Defendant O'Rourke should be dismissed from this action without prejudice. As Defendant O'Rourke is the only remaining Defendant in this action, the Clerk of Courts should be directed to close this case.
III. CONCLUSION
It is respectfully recommended that Defendant O'Rourke should be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure due to Plaintiff's failure to accomplish service on her. The Clerk of Courts should be directed to close this case.
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen days. Any party opposing the objections shall have fourteen days to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge Dated: March 7, 2017