Opinion
05 Civ. 5318(LTS)(FM).
January 31, 2006
REPORT AND RECOMMENDATION TO THE HONORABLE LAURA TAYLOR SWAIN
I respectfully recommend that this pro se action be dismissed without prejudice for failure to effect timely service. The relevant procedural history is as follows:
By order dated December 29, 2004, Chief Judge Michael B. Mukasey prohibited plaintiff Israel Valle from filing any further actions in this Court without first obtaining the Court's permission to do so. See Valle v. United States, 04 Civ. 5738(MBM) (S.D.N.Y. December 29, 2004).
On April 13, 2005 the Pro Se Office received Valle's pro se complaint in this action, which names as defendants the United States of America, George Walker Bush, the YMCA of Greater New York, and others. Thereafter, by order dated June 6, 2005 ("the June 6 Order"), Judge Mukasey directed Valle to amend his complaint to name only the YMCA of Greater New York as a defendant. (See Docket No. 5).
Despite that directive, on July 13, 2005, Valle filed an amended complaint which named the same defendants as he had in the original complaint. (Docket No. 6). Judge Mukasey then issued a second order, dated August 9, 2005, which again directed Valle to comply with the June 6 Order. (Docket No. 7). Valle was cautioned that his failure to comply might result in the dismissal of his action. (Id.).
On September 14, 2005 Valle filed a second amended complaint which again failed to comply with the June 6 Order. Nevertheless the case was reassigned from Judge Mukasey to Your Honor. (Docket No. 9). On October 13, 2005, Your Honor issued an order which restricted the second amended complaint to Valle's claims against the YMCA and directed that Valle contact the Pro Se Office for instructions on serving the second amended complaint. (Docket No. 12). The case also was referred to me for general pretrial management and to report and recommend with respect to any dispositive motions. (Id.).
On October 21, 2005, I issued an order directing Valle to serve the YMCA by December 16, 2005. (Docket No. 13). My order cautioned that if service was not effected by that date, unless Valle showed good cause, the Court would recommend that this action be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. That rule provides:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion, or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice, as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Both Your Honor and I have repeatedly cautioned Valle that he needs to make the arrangements necessary for the Marsh Service to serve the YMCA. (See Docket Nos. 13, 15). Nevertheless, at every stage of this suit, Valle has directed the Court to send copies of the documents that he has filed to all parties, evidently believing that it is our obligation — not his — to effect service.
Most recently, on October 30, 2005, Valle filed a "Motion for Leave to Amend the Complaint," in which he also sought relief from "judgment." By memo endorsement dated January 5, 2006, I demed those applications and, again, advised Valle that his direction that the Court effect service was not an acceptable substitute for proper service. (Docket No. 17). Despite that admonition, over the more than seven months that this action has been pending. Valle has yet to take any steps to serve the YMCA. Moreover, he has provided no justification for his failure to do so.
Accordingly, I recommend that this case be dismissed without prejudice. Notice of Procedure for Filing of Objections to this Report and Recommendation
The plaintiff shall have ten days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a) and (c). Any such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Laura Taylor Swam, at the United States Courthouse, 40 Centre Street, New York. New York 10007, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Fed.R.Civ.P. 6(a), 6(c), 72(b).