Opinion
Civil Action 21-cv-2821-WJM-GPG
03-23-2022
JANA S. BOUCHARD, Plaintiff, v. SCOTT SCHERER, Defendant.
ORDER DISMISSING CASE WITHOUT PREJUDICE FOR FAILURE TO TIMELY SERVE DEFENDANT UNDER FEDERAL RULE OF CIVIL PROCEDURE 4(m)
William J. Martinez, United States District Judge
On October 19, 2021, Plaintiff Jana S. Bouchard, proceeding pro se, filed this employment discrimination action against Defendant Scott Scherer. (ECF No. 1.) On January 18, 2022, United States Magistrate Judge Gordon P. Gallagher issued an Order to Show Cause as to why this matter should not be dismissed based on Plaintiff's failure to serve Defendant within the 90-day period set forth in Federal Rule of Civil Procedure 4(m). (ECF No. 7.) On January 28, 2022, Plaintiff responded to the Order to Show Cause. (ECF No. 8.)
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.” Fed.R.Civ.P. 4(m); cf. D.C.COLO.LCivR 41.1 (providing for dismissal with or without prejudice for failure to comply with the Federal Rules of Civil Procedure).
Following Plaintiff's response, on February 2, 2022, Judge Gallagher discharged his Order to Show Cause and granted Plaintiff an additional 30 days to garner service and to file the service of process documents in this action in the United States District Court for the District of Colorado. (ECF No. 9.) Specifically, Judge Gallagher stated that “[f]ailing to obtain service of process or to file the documents as Ordered SHALL result in dismissal of this action absent further extension of time to obtain service based on good cause shown.” (Id. (emphasis in original).)
On March 1, 2022, Plaintiff submitted documents in response to Judge Gallagher's February 2, 2022 Order. (ECF No. 10.) However, Plaintiff's submission does not demonstrate that she has served Defendant, nor has she filed service of process documents in this action. Further, Plaintiff has not filed a motion for an extension of time in which to serve Defendant.
In his February 2, 2022 Order, Judge Gallagher explicitly stated that failure to obtain service of process shall result in dismissal of this action absent further extension of time to obtain service based on good cause show. (ECF No. 9.) Given Plaintiff's failure to timely serve Defendant under Rule 4(m) or move for an extension of time in which to do so, the Court determines that dismissal of this civil action for failure to timely serve under Rule 4(m) is warranted. See Vuolo v. Garfield Cnty. Sheriffs, 2010 WL 326320, at **1-2 (D. Colo. Jan. 20, 2010).
For the reasons stated above, the Court DISMISSES this civil action WITHOUT PREJUDICE for failure to timely serve Defendant under Rule 4(m). The Clerk is DIRECTED to terminate this case.