Opinion
Civil Action No. 1:05cv353-WJG-JMR.
June 9, 2006
REPORT AND RECOMMENDATION
This matter comes before the Court, sua sponte, regarding failure of the petitioner Vasile Popescu to prosecute/or to serve the defendant. It is the plaintiff's duty to properly serve the defendant within 120 days after the filing of the complaint, pursuant to Federal Rule of Civil Procedure 4(m).
The petitioner filed his complaint on July 22, 2005. On August 3, 2005, the petitioner filed an attachment to his complaint. To date, the record does not reflect that the plaintiff has served the defendant with a summons and a copy of the complaint. Federal Rule of Civil Procedure 4(m) allows the plaintiff 120 days after the filing of the complaint to serve the summons and complaint upon a defendant. If the service is not made within the allotted time period, the Rule states that the Court shall dismiss the action without prejudice as to that defendant. The Pearl River Sheriff's Department is the only defendant in the instant case.
This Court has authority to dismiss an action for the petitioner's failure to prosecute under Rule 41 (b) of the Federal Rules of Civil Procedure under its inherent authority to dismiss the action sua sponte. Link v. Wabash Railroad, 370 U.S. 626 (1962); Lopez v. Arkansas County Independent School District, 570 F. 2d 541, 544 (5th Cir. 1978); Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir. 1998). The Court must be able to clear its calendar of cases that remain dormant because of the inaction or dilatoriness of the parties seeking relief, so as to achieve the orderly and expeditious disposition of cases. Such a sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the court. Link, supra, 370 U.S. at 630.
Based on the foregoing, this Court is of the opinion that the petitioner has failed in his obligation to serve the defendant within the allotted time period and that this failure is indicative of a lack of interest in pursuing this cause and delays the expeditious resolution of other cases. Therefore, this Court recommends that the claims of this petitioner, Vasile Popescu, be dismissed without prejudice for the petitioner's failure to comply with the Court's Orders and Rule 41(b) of the Federal Rules of Civil Procedure.
In accordance with the Rules of this Court, any party, within ten days after being served a copy of this recommendation, may serve and file written objections to the recommendations, with a copy to the District Judge, the U.S. Magistrate Judge, and the opposing party. The District Judge at that time may accept, reject or modify in whole or in part, the recommendation of the Magistrate Judge, or may receive further evidence or recommit the matter to this Court with instructions. Failure to timely file written objections to proposed findings, conclusions, and recommendations contained in this report will bar an aggrieved party, except on the grounds of plain error, from attacking on appeal unobjected to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United States Auto Ass'n, 79 F.3d 1425 (5th Cir. 1996).