Opinion
No. 3-03-CV-1139-P.
July 2, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The court sua sponte notes that plaintiff has never effected service on Defendant David Morton. On May 23, 2003, plaintiff filed its original complaint and the district clerk issued a summons to Morton the same day. It is not apparent from the docket sheet or court file whether plaintiff ever attempted to serve Morton with the summons and complaint. On May 21, 2004, after this case had been pending for more than a year with virtually no activity, plaintiff filed a motion for extension of time to serve Morton. As grounds for its motion, plaintiff alleged that it recently learned that the target of this lawsuit is David Horton using the alias David Morton. However, by its own admission, plaintiff discovered Morton's true identity when it took his deposition in another case on October 3, 2003. Because plaintiff waited more than seven months to seek an extension of time to serve this defendant without establishing good cause for this delay, the court denied the motion for extension of time. See ORDER, 5/24/04 at 2. Although plaintiff was invited to reurge its motion if it could demonstrate good cause for failing to effect service in a timely manner, it has failed to do so.
Fed.R.Civ.P. 4(m) authorizes a district court to dismiss an action without prejudice "[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint . . ." FED. R. CIV. P. 4(m). The court must extend the time for service upon a showing of good cause. See Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996). "Good cause" normally requires some evidence of "good faith on the part of the party seeking an enlargement of time and some reasonable basis for non-compliance within the time specified." Balazadeh v. Rust College, 1998 WL 34024156 at *1-2 (N.D. Miss. Sept. 9, 1998), quoting Lambert v. United States, 44 F.3d 296, 299 (5th Cir. 1995). Simple inadvertence, mistake of counsel, and ignorance of the rules usually do not suffice. Id. Even if good cause does not exist, the court has discretion to extend the time to serve a defendant upon a showing that relief is justified. Thompson, 91 F.3d at 21.
Plaintiff alleges that it discovered Morton is in fact David Horton after he was designated as an expert witness and deposed in a related lawsuit pending before another judge in this district, DirecTV, Inc. v. Charles K. Ashley, Jr., No. 4-02-CV-727-Y. Although plaintiff does not indicate when it deposed Morton a/k/a Horton in the Ashley litigation, documents from that case reveal that the deposition took place on October 3, 2003. Yet plaintiff waited until May 21, 2004 to seek an extension of time to serve this defendant. Without proof that plaintiff diligently attempted to locate Horton after establishing his true identity, good cause does not exist for extending the time for service. Nor should the court exercise its discretion to extend the time for effecting service of process. Plaintiff is well aware of the fact that this case is one of many that have been consolidated for pretrial management. Several pretrial deadlines, including the deadlines for completing mediation and filing motions to dismiss, have already expired. To allow plaintiff to prosecute this action against a defendant who has been all but ignored would unduly disrupt the court's comprehensive pretrial management plan.
Plaintiff filed a motion to strike Horton's expert testimony on November 7, 2003. In that motion, plaintiff states that it deposed Horton on October 3, 2003.
RECOMMENDATION
Plaintiff has not shown good cause for failing to effect service on David Morton a/k/a David Horton within 120 days after the filing of its complaint. Accordingly, all claims against this defendant should be dismissed without prejudice. See FED. R. CIV. P. 4(m).
A copy of this report and recommendation shall be sent to all counsel and any unrepresented parties. Any party may file written objections to this recommendation by July 16, 2004. The failure to file written objections shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error or manifest injustice. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).