Opinion
04 Civ. 7817 (RMB) (KNF).
July 18, 2005
DECISION AND ORDER
I. Background
On or about October 1, 2004, pro se plaintiff Diana E. Moutsinas ("Moutsinas") filed a complaint ("Complaint" or "Compl.") against the Department of Education of the City of New York and the City of New York (collectively, "Defendants"), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.. (See Compl. at 1.) After more than 120 days elapsed from the filing date, October 1, 2004, Moutsinas had still not served Defendants. (Order of Magistrate Judge Fox, dated March 10, 2005 ("March Order"), at 1.)
By order dated March 9, 2005, United States Magistrate Judge Kevin N. Fox, to whom the matter had been referred, directed Plaintiff to serve the summons and complaint upon Defendants and file proof of service on or before April 8, 2005. (March Order at 1.) Magistrate Judge Fox advised that, "[i]f the defendants are not served with the summons and complaint on or before that date, and if the plaintiff fails to show cause, in writing, why service has not been effected, a report and recommendation will be made to the assigned United States district judge that the complaint be dismissed, for failure to prosecute, pursuant to Rules 4 and 41 of the Federal Rules of Civil Procedure." (Id.)
Moutsinas did not file proof of service on or before April 8, 2005, and Magistrate Judge Fox issued a report and recommendation on April 21, 2005 ("Report") recommending that the Complaint be dismissed because "Moutsinas did not effect service within the original 120 period provided by Rule 4(m), or within the additional period of time provided by the Order [and] she has not submitted anything to the Court in an attempt to show good cause for her failure to comply with the Order." (Report at 2.)
The Report also stated that "[p]ursuant 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. . . . Failure to file objections within the ten (10) days will result in a waiver of objections and will preclude appellate review." (Report at 2-3 (emphasis omitted).) No objections have been filed.
For the reasons set forth below, the Court adopts the Report in its entirety and dismisses the complaint.
II. Standard of Review
A district court evaluating a magistrate's report may adopt those portions of the report which neither party has objected to and which are not clearly erroneous. Fed.R.Civ.P. 72(b);Thomas v. Arn, 474 U.S. 140, 149 (1985); Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997). A district judge may accept, reject, or modify, part or all of the magistrate's findings and recommendations. See DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988).
Where, as here, the plaintiff is proceeding pro se, "leniency is generally accorded." Bey v. Human Resources Admin., No. 97CN. 6616, 1999 WL 31122, at *2 (E.D.N.Y. Jan. 12, 1999).
III. Analysis
The Court has conducted a review of the Report as well as appropriate legal authorities and finds that the Report is not clearly erroneous and is in conformity with the law. See Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991);see also Fed.R.Civ.P. 4(m). "The Second Circuit has held that dismissal is mandatory when a party is not served within the 120-day time limit and where there is no showing of good cause."Ogbo v. N.Y.S. Dep't of Taxation and Fin., No. 99 Civ. 9387, 2000 WL 1273840, at *2 (S.D.N.Y. Sept. 6, 2000) (citing Zankel v. United States, 921 F.2d 432, 436 (2d Cir. 1990)); see also Fed.R.Civ.P. 41(b).
IV. Conclusion and Order
The Court incorporates the Report [5] by reference, and for the reasons stated therein and herein, dismisses the Complaint. The Court respectfully requests that the Clerk of the Court close this case.