Opinion
No. 04 Civ. 6966 (RJH) (AJP).
January 19, 2005
REPORT AND RECOMMENDATION
To the Honorable Richard J. Holwell, United States District Judge:
Plaintiff's pro se complaint in this action was filed as of August 27, 2004. (Dkt. No. 1.)
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. . . .
By Order dated September 30, 2004, I advised plaintiff that if the complaint was not properly served under Rule 4(m), that is, by December 27, 2004, I would recommend that the action be dismissed. (Dkt. No. 3.) I also directed plaintiff to provide my chambers with proof of service when made. (Id.)
The Court notes that the regular and certified mail copies of that Order were returned to the Court by the Post Office, with the notation, "Attempted, not known." The address the Order was mailed to is the one on the complaint (and on the EEOC right to sue letter attached to the complaint), and is the only address the Court has for plaintiff Jaiman.
Plaintiff has not provided my chambers with proof of service on defendant, 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. In addition, the Marshal's Office has advised that they have not received any papers from plaintiff for service on defendant.
More than 120 days having passed from the filing of the amended complaint, 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 defendant, 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 courtesy copies delivered to the chambers of the Honorable Richard J. Holwell, 500 Pearl Street, Room 1950, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Holwell. 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. Herrmann, 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).