Smalls v. Faniel

Full title: WAYNE SMALLS, as Executor of the Estate of William Smalls, Plaintiff, v…

Court: United States District Court, E.D. New York

Date published: Mar 17, 2022

21 CV 4767 (AMD)(LB) (E.D.N.Y. Mar. 17, 2022)

Opinion

21 CV 4767 (AMD)(LB)

03-17-2022

WAYNE SMALLS, as Executor of the Estate of William Smalls, Plaintiff, v. WILLIAM FANIEL, as Executor of the Estate of Bessie Smalls, Defendant.

LOIS BLOOM, UNITED STATES MAGISTRATE JUDGE

REPORT & RECOMMENDATION

LOIS BLOOM, UNITED STATES MAGISTRATE JUDGE

Plaintiff commenced this action against defendant on August 24, 2021. ECF No. 1. The Federal Rules of Civil Procedure provide that:

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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). Under Rule 4(m) plaintiff was required to serve defendant by November 22, 2021; however, plaintiff did not file a proposed summons until February 16, 2022. ECF No. 7. The summons was then issued on February 18, 2022. ECF No. 8. On February 22, 2022, the Court ordered plaintiff to show good cause, by March 1, 2022, why service was not made on defendant before November 22, 2021 and warned that if plaintiff failed to show good cause, I would recommend that the case should be dismissed pursuant to Rule 4(m). Feb. 22, 2022 Order. Plaintiff has not responded to the Court's Order to show cause. Accordingly, it is respectfully recommended that plaintiff's action should be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) 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. Any request for an extension of time to file objections must be made within the fourteen-day period. Failure to file a timely objection to this Report generally waives any further judicial review. Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42, 46 (2d Cir. 2002); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); see Thomas v. Arn, 474 U.S. 140 (1985).

SO ORDERED.