Opinion
No. 02 Civ. 2282 (RMB) (AJP).
May 24, 2006
REPORT AND RECOMMENDATION
On March 1, 2005 the Second Circuit reversed in part the District Court's prior sua sponte dismissal of plaintiff's § 1983 suit. (Dkt. No. 13: 2d Cir. Mandate Opinion.) The case was referred to me on February 9, 2006 (Dkt. No. 16), and I ordered plaintiff to inter alia serve the complaint on defendants by May 10, 2006 (120 days from issuance of the amended summons on January 10, 2006) or I would recommend dismissal, and the order further directed plaintiff to provide a courtesy copy of the proof of service to my chambers. (Dkt. No. 17: 2/10/06 Order to Pro Se to Serve Complaint.) That order was returned from Jacobs' last known address (Wyoming Correctional Facility in Attica, New York) but the Pro Se Office obtained a Bronx address for Jacobs from the Corrections Department, and the Court's February 10, 2006 Order was re-sent to Jacobs at that address on February 22, 2006.
Rule 4(m) of the Federal Rules of Civil Procedure provides:
Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. . . .
Plaintiff has not provided my chambers with proof of service on defendants, and a review of the Court's docket sheet for this action discloses that there is no affidavit of service on file with the Clerk's Office. The Marshal's Office has advised my chambers that they have not received any request from plaintiff to serve defendants.
More than 120 days having passed from issuance of the amended summons, and the Court having advised plaintiff of his obligations under Fed.R.Civ.P. 4(m), and there being no indication that plaintiff has had the complaint served on defendants, I recommend that the Court dismiss plaintiff's complaint without prejudice for failure to timely serve it pursuant to Fed.R.Civ.P. 4(m). See, e.g., Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002).
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtsey copies delivered to the chambers of the Honorable Richard M. Berman, 500 Pearl Street, Room 650, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman (with a courtsey copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v.Herman, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992);Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).