Opinion
C. A. 2:23-cv-04211-RMG-MHC
02-28-2024
Mark W. Taylor, Derivatively on Behalf of Nominal Defendant Apex FW Manager, LLC, Plaintiff, v. Apex Forth Worth Partners, LLC; and Apex FW Manager, LLC, Nominal Defendant, Defendants.
ORDER AND REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This is a civil action by Plaintiff Mark W. Taylor, a pro se litigant. Taylor, an attorney, brings this action derivatively on behalf of Apex FW Manager, LLC. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
By Order filed September 19, 2023, service was authorized on Defendants. ECF No. 6. In the Order, the Court advised Plaintiff that “Plaintiff is responsible for service of process under Rule 4 of the Federal Rules of Civil Procedure.” Id. at 1-2 (emphasis in original). The Court further advised:
Plaintiff has 90 days from the date on which the summonses are issued to serve Defendants in compliance with Rule 4. Under Rule 4(m), unless a Defendant is served within 90 days after the summonses are issued as directed by this Order, that particular unserved Defendant may be dismissed without prejudice from this case.Id. at 2 (emphasis in original).
The summonses were issued by the Clerk of Court and mailed to Plaintiff on September 19, 2023. ECF Nos. 7 & 8. The mail containing the summonses was returned undeliverable on September 29, 2023. ECF No. 10. Plaintiff updated his address on October 2 and 3, 2023, and the summonses were re-mailed to his updated address on October 2, 2023. ECF Nos. 12-14. The
October 2, 2023 mailing sent to Plaintiff's updated address has not been returned to the Court. See generally Docket (no indication that the mailing documented at ECF No. 12 was returned).
The time for service began to run on September 19, 2023, and the ninety-day period for service provided by Rule 4 expired on December 18, 2023. However, Plaintiff has failed to file any documents with the Court indicating that service has been executed.
Rule 4(m) provides:
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). Therefore, unless Plaintiff has made proper service on Defendants or can show good cause for failure to serve, this case is subject to dismissal.
Plaintiff is herein specifically advised and placed on notice that, in response to this Report and Recommendation, he is to provide the Court with proof of service on Defendants, or present good cause to the Court for any failure to serve Defendants, within ten (10) days of the filing of this Report and Recommendation. Failure to do so may result in this case being dismissed.
CONCLUSION
If in response to this Report and Recommendation, Plaintiff submits to the Court proof of timely service on any Defendant, then in that event IT IS ORDERED that this Report and Recommendation be VACATED, and that the file be returned to the undersigned for further proceedings. However, in the event Plaintiff fails to submit to the Court proof of service on the Defendants, or to demonstrate good cause for having failed to do so, within the time granted herein, it is RECOMMENDED that this case be DISMISSED, without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
In the event Plaintiff has failed to serve the Defendants with service of process but submits material to the Court asserting good cause for such failure, whether or not to accept Plaintiff's assertions of good cause shall be in the sole discretion of the District Judge in his review of this Report and Recommendation.
The parties are referred to the Notice Page attached hereto.