Opinion
SA-23-CV-307-FB (HJB)
03-15-2024
HURNEVIN G. COLLIER, Plaintiff, v. BROOKE ARMY MEDICAL CENTER, Defendant.
Honorable Fred Biery United States District Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad United States Magistrate Judge
This Report and Recommendation concerns the status of the above case, which has been referred to the undersigned for consideration of pretrial matters pursuant to 28 U.S.C. § 636(b). (See Docket Entry 4.) For the reasons set out below, I recommend that this case be DISMISSED WITHOUT PREJUDICE for failure of timely service pursuant to Federal Rule of Civil Procedure 4(m) and for failure to prosecute and comply with court orders pursuant to Federal Rule of Civil Procedure 41(b). I further recommend that the pending motion to dismiss (Docket Entry 10) be DENIED AS MOOT.
Plaintiff, proceeding pro se, filed his Federal Torts Claim Act (“FTCA”) complaint on March 13, 2023; under Rule 4(m), the time for service of the complaint expired on June 12, 2023. Plaintiff submitted proof of service purporting to show service of the complaint on the Commanding Judge Advocate of Brook Army Medical Center (BAMC) on June 7, 2023. (Docket Entry 7.) This service was ineffective: Federal Rule of Civil Procedure 4(i)(2) required service of the United States in addition to BAMC. Rule 4(i)(1) required that the United States be served by:
(1) either delivery of a copy of the summons and of the complaint to the United States attorney or his designee or by registered or certified mail to the civil-process clerk at the United States attorney's office; and
(2) registered or certified mail to the Attorney General of the United States in Washington, D.C.See FED. R. CIV. P. 4(i)(1).
After the service deadline passed, Defendant filed a notice indicating that it had not been properly served under Federal Rule of Civil Procedure 4(i). (Docket Entry 6.) The undersigned thereafter issued an order explaining to Plaintiff how proper service upon the United States or its agencies must be effectuated pursuant to Rule 4(i). (Docket Entry 8.) The Court also sua sponte extended Plaintiff's deadline for service to August 7, 2023. (Id.)
Plaintiff's extended deadline passed with no showing that Defendant has been properly served. Accordingly, the undersigned issued a show cause order requiring Plaintiff to show cause why the case should not be dismissed for the failure of timely service under Rule 4(m). (Docket Entry 9.) The Show Cause Order admonished Plaintiff that, if he failed to respond, his case would be subject to dismissal pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute or to comply with the orders of the court. (Id. at 2.) Two days later, Defendant moved to dismiss the case for failure of proper service under Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5). (Docket Entry 10.)
Plaintiff did not respond to the show cause order, or to Defendant's motion. Defendant's motion did not include a certificate of service; however, the Court's Show Cause Order was mailed to the address identified in Plaintiff's complaint, and the order was returned as undeliverable. (See Docket Entry 11.) Plaintiff has not updated his address, and he has not filed any document or had any other contact with the Court in three months.
Rule 4 of the Federal Rules of Civil Procedure provides that, “[i]f 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 the defendant or order that service be made within a specified time.” FED. R. CIV. P. 4(m). “But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id. In this case, Defendant was not served within 90 days after the filing of the complaint, nor was it served within the extended period provided by the Court. Accordingly, dismissal under Rule 4(m) is appropriate.
Alternatively, dismissal is appropriate under Federal Rule of Civil Procedure 41. The Rule provides that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” FED. R. CIV. P. 41(b). Although the rule is phrased in terms of a motion to dismiss, the Court possesses inherent authority to dismiss an action sua sponte. See Link v. Wabash R.R., Co., 370 U.S. 626, 630-31 (1962); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). In appropriate cases, dismissal for want of prosecution is essential to the administration of justice: the Court must be able to clear its calendar of cases that remain dormant because of the inaction or dilatoriness of the parties seeking relief, so as to achieve the orderly and expeditious disposition of cases. Link, 370 U.S. at 630. As the Court explained in Link, the availability of the dismissal sanction “is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars” of the Court. Id. at 630-31.
In this case, Plaintiff's case should be dismissed under Rule 41(b). Plaintiff has failed to make effective service on Defendant, even after being advised by defense counsel and the Court, and has failed to respond to the Court's show cause order, or Defendant's motion to dismiss. Plaintiff has failed to respond to the Court despite being specifically advised that such failure could result in dismissal under Rule 41(b). (See Docket Entry 9.) Indeed, Plaintiff has had no contact with the Court since filing proof of improper service nearly three months ago. His inaction warrants dismissal without prejudice under Rule 41(b).
Even when dismissal under Rule 41(b) is ordered without prejudice, the dismissal is subject to greater scrutiny if, because of the applicable statute of limitations, the dismissal could have a prejudicial effect on a plaintiff's ability to reinstate his claims. See, e.g., Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 441 (5th Cir. 2016). In this case, it is impossible to make a determination as to the limitations issue, because Plaintiff has not provided any information or allegation as to the date of his injury, nor has he provided information pertaining to the mailing of notice of denial of a claim by BAMC or any federal agency. See 24 U.S.C. § 2401(b) (setting out limitations periods for FTCA claims). Nevertheless, assuming a limitations issue is presented by the case, dismissal is separately required by Rule 4(m).
Based on the foregoing, I recommend that Plaintiffs' case be DISMISSED WITHOUT PREJUDICE pursuant to Federal Rules of Civil Procedure 4(m) and 41(b). In light of the recommended dismissal, I further recommend that Defendant's Motion to Dismiss (Docket Entry 10) be DENIED AS MOOT.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The party shall file the objections with the clerk of the court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections.
A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).