Opinion
20-CV-5569 (PGG) (RWL)
02-01-2021
JOSEPH GUGLIELMO, Plaintiff, v. PAMELA'S PRODUCTS, INC., Defendant.
ORDER AND REPORT AND RECOMMENDATION FOR DISMISSAL
Robert W. Lehrburger, United States Magistrate Judge
Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, “[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 or order that service be made within a specified time.” Fed.R.Civ.P. 4(m). But “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id. “Good cause is generally found only in exceptional circumstances where the plaintiff's failure to serve process in a timely manner was the result of circumstances beyond its control.” Ping Chen ex rel. U.S. v. EMSL Analytical, Inc., 966 F.Supp.2d 282, 306 (S.D.N.Y. 2013) (internal quotation marks and citation omitted).
On July 20, 2020, Plaintiff filed this case alleging violation of his civil rights pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. (Dkt. 1.) A summons issued the very next day. (Dkt. 4.) On December 7, 2020, noting that Plaintiff had not yet served Defendant, this Court ordered Plaintiff to do so or to show cause in writing why this case should not be dismissed for failure to prosecute, by December 21, 2020. (Dkt. 6.) On January 4, 2021, noting that Plaintiff still had not filed either an affidavit of service or a written submission explaining Plaintiff's continuing failure to effect service, this Court offered Plaintiff “a final opportunity to act, ” by January 18, 2021. (Dkt. 7.) January 18, 2021, came and went without any response from Plaintiff. Indeed, Plaintiff has taken no action whatsoever to prosecute this case since July 20, 2020, the day he filed his complaint and requested the summons that he never served on Defendant.
Accordingly, the Court (1) finds that Plaintiff has failed to effect timely service on Defendant pursuant to Fed.R.Civ.P. 4(m) and to show good cause that would compel the Court to extend Plaintiff's time for service; (2) further finds that Plaintiff has failed to comply with the Court's orders and otherwise prosecute his case; and (3) recommends that, in accordance with Fed.R.Civ.P. 4(m), Plaintiff's claims against Defendant be dismissed without prejudice.
Procedure for Filing Objections
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Paul G. Gardephe, Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY 10007, and to Chambers of the undersigned, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.