Opinion
CASE NO. 3:15-cv-108-34JBT
07-20-2015
BARBARA ANN BINES, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
"Within 14 days after being served with a copy of [this Report and Recommendation], a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy." Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1); M.D. Fla. R. 6.02(a). "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1).
THIS CAUSE is before the Court following the Court's June 5, 2015 Order (Doc. 10). For the reasons set forth herein, the undersigned respectfully recommends that the case be DISMISSED without prejudice.
On June 5, 2015, the Court ordered Plaintiff to show cause "why this case should not be dismissed without prejudice for failure to timely serve Defendant pursuant to Fed. R. Civ. P. 4(m), and for failure to prosecute pursuant to Rule 3.10(a) of the Local Rules of the United States District Court for the Middle District of Florida." (Doc. 10 at 2.) The Court gave Plaintiff until June 26, 2015 to do so. In addition, the Court warned Plaintiff that "[e]ven a dismissal without prejudice may impact Plaintiff's substantive rights by, for example, application of a statute of limitations." (Id. at 2 n.1.) To date, Plaintiff has neither filed proof of service on Defendant nor otherwise responded to the Court's Order.
Although it appears that Plaintiff provided the Clerk of Court with a correct summons for the Commissioner of Social Security for service by the U.S. Marshal, she did not provide correct summons for the U.S. Attorney General or the U.S. Attorney for the Middle District of Florida. Federal Rule of Civil Procedure 4(i)(2) requires service on all three entities.
Rule 4(m) of the Federal Rules of Civil Procedure provides in pertinent part:
If a defendant is not served within 120 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.
When Plaintiff failed to file proof of service on Defendant within 120 days after filing the Complaint, the Court provided notice to Plaintiff in the June 5th Order that Plaintiff's case may be recommended for dismissal if Plaintiff did not show cause for this failure by June 26, 2015. (Doc. 10 at 2.) Because Plaintiff has not responded and shown good cause for her failure to file proof of service on Defendant to date, the undersigned recommends dismissal of the case pursuant to Federal Rule 4(m).
Moreover, Rule 3.10(a) of the Local Rules of the United States District Court for the Middle District of Florida provides:
Whenever it appears that any case is not being diligently
prosecuted the Court may, on motion of any party or on its own motion, enter an order to show cause why the case should not be dismissed, and if no satisfactory cause is shown, the case may be dismissed by the Court for want of prosecution.
Plaintiff's lack of prosecution in the case prompted the undersigned to enter an Order requiring Plaintiff to show cause why the case should not be recommended for dismissal for failure to prosecute. (Doc. 10 at 2.) Because Plaintiff has not responded and shown satisfactory cause for this failure to date, the undersigned recommends dismissal of the case pursuant to Local Rule 3.10(a) as well.
For all of the aforementioned reasons, the undersigned recommends that the case be dismissed without prejudice for Plaintiff's failure to perfect service pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, and for failure to prosecute pursuant to Rule 3.10(a) of the Local Rules of the United States District Court for the Middle District of Florida.
Accordingly, it is respectfully RECOMMENDED that:
1. The Case be DISMISSED without prejudice.
2. The Clerk of Court be directed to terminate any motions and close the file.
DONE AND ENTERED at Jacksonville, Florida, on July 20, 2015.
/s/_________
JOEL B. TOOMEY
United States Magistrate Judge
Copies to: Pro Se Plaintiff