Opinion
CIVIL ACTION NO. 18-150-SDD-RLB
04-29-2019
MARY CROCHET v. JARED BARTON, ET AL.
NOTICE
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Signed in Baton Rouge, Louisiana, on April 29, 2019.
/s/ _________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This matter is before the Court sua sponte regarding Plaintiff's failure to serve the defendant Bobby Bailey within the time limitations provided by Rule 4(m) of the Federal Rules of Civil Procedure.
Mary Crochet ("Plaintiff") initiated this action in the 19th Judicial District Court, East Baton Rouge Parish, Louisiana, naming as defendants Jared Barton, Dennis Barton, Barton Trucking, Inc., National Indemnity Company, Bobby Bailey and XYZ Insurance Company (Doc. 1-2). Defendant National Indemnity Company removed this matter on February 15, 2018. (R. Doc. 1). An amended petition (R. Doc. 15) was filed against additional defendant Hensley R. Lee Contracting, Inc. A second amended complaint (R. Doc. 27) was filed against additional defendants Barton Storage Buildings, Inc. and Liberty Mutual Insurance Company.
The record indicates that Bobby Bailey has not been served.
Rule 4(m) of the Federal Rules of Civil Procedure provided 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 that defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m). The Rule further provides that the Court "must extend the time for service for an appropriate period" if the plaintiff is able to show good cause for his failure. Id.
The Court issued an amended scheduling order on January 15, 2019 (R. Doc. 35). In the Court's amended scheduling order, the Court ordered that by March 1, 2019, Plaintiff was to "show cause, in writing, why her claims asserted against Jared Barton, Bobby Bailey, Hensley R. Lee Contracting, Inc., Liberty Mutual Insurance Company, and Barton Storage Buildings, Inc. should not be dismissed because of her failure to serve those defendants within the time allowed by Fed. R. Civ. P. Rule 4(m). Plaintiff is advised that a failure to file a written response to this Order within the time allowed may result in the dismissal of her claims against these defendants without further notice from the Court."
A review of the record indicates that defendants Jared Barton, Hensley R. Lee Contracting, Inc., Liberty Mutual Insurance Company, and Barton Storage Buildings, Inc. have been served and have filed answers (R. Docs. 41, 42, 43, 44, 45, 46). However, the defendant Bobby Bailey has not been served and has not made an appearance in this matter. Plaintiff has not requested a summons for the purpose of serving the defendant Bobby Bailey and Plaintiff has not filed any proof of service with regard to the defendant Bobby Bailey. In addition, Plaintiff did not file a response to the Court's show cause order.
As of the date of this Report and Recommendation, Plaintiff has not shown cause, in writing, why her claims asserted against defendant Bobby Bailey should not be dismissed because of her failure to serve this defendant within the time allowed by Rule 4(m).
In light of the foregoing,
IT IS RECOMMENDED that Plaintiff's claims against defendant Bobby Bailey be dismissed, without prejudice, for failure to effect service pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
Signed in Baton Rouge, Louisiana, on April 29, 2019.
/s/ _________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE