Opinion
C. A. : 3:23-981-MGL-SVH
08-29-2023
Chengfeng Lin and Saijin Chen, Plaintiffs, v. Alejandro Mayorkas, Secretary of the Department of Homeland Security; Merrick Garland, Attorney General of the United States; Loren Miller, Director of Nebraska Service Center, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
This matter comes before the court on the failure of Chengfeng Lin and Saijin Chen (“Plaintiffs) to effect service of the summons and complaint on defendants Alejandro Mayorkas, Secretary of the Department of Homeland Security; Merrick Garland, Attorney General of the United States; Loren Miller, Director of Nebraska Service Center Sorrell Brown (“Defendants”), and on the court's order directing Plaintiffs to address their failure. This matter has been referred to the undersigned for all pretrial proceedings pursuant to 28 U.S.C. §636(b) and Local Civ. Rule 73.02(b)(2)(e) (D.S.C.).
The docket in this case reveals no evidence that Plaintiffs have effected service on Defendants. The summons was issued on March 10, 2023, and it expired on June 8, 2023. [ECF No. 7]. Rule 4(m) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:
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.Fed. R. Civ. P. 4(m).
On June 9, 2023, the undersigned issued an order stating:
Plaintiffs are hereby placed on notice that unless good cause is shown to the court by June 23, 2023, for their failure to effect service of the summons and complaint on Defendants, plaintiffs' action will be recommended for dismissal without prejudice against Defendants. To the extent that service has been effected on Defendants, plaintiffs are reminded of Fed.R.Civ.P. 4(1), which requires proof of service be made to the court. Plaintiffs' failure to respond in writing will result in a recommendation of dismissal of the complaint without prejudice against Defendants.[ECF No. 9]. Notwithstanding this order and warning, Plaintiffs failed to respond to the order. As such, it appears to the court that Plaintiffs wish to abandon this action. Based on the foregoing, the undersigned recommends Plaintiffs' case be dismissed without prejudice for failure to prosecute. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed.R.Civ.P. 41(b).
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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 901 Richland Street Columbia, South Carolina 29201
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).