Opinion
23-CV-1137 (AMD)
12-05-2023
JIE DONG and GUOHUI LIN, Plaintiffs, v. MERRICK GARLAND et al., Defendants.
REPORT AND RECOMMENDATION
TARYN A. MERKL, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Jie Dong and Guohui Lin (“Plaintiffs”), pro se, initiated this case by filing a petition for writ of mandamus on February 9, 2023, seeking to have a United States Citizenship and Immigration Services officer determine their immigration status. (See Compl., ECF No. 1.)
Summons were issued on February 9, 2023. (ECF No. 3.) On February 27, 2023, Plaintiffs filed proof of mailing of the Summons to the four named Defendants. (Summons Returned Executed, ECF No. 5.) On July 31, 2023, the Honorable Ann M. Donnelly entered an order directing Plaintiffs to file proof of service on the United States Attorney for the Eastern District of New York by August 31, 2023. (July 31, 2023 ECF Order.) Federal Rule of Civil Procedure 4(i)(1) requires parties who are serving the United States to deliver or send a copy of the Summons and Complaint to the United States Attorney's Office. To date, despite reminders, warnings, and extensions of the time for service, Plaintiffs have failed to establish service on the United States Attorney for the Eastern District of New York as directed. Accordingly, the undersigned respectfully recommends that Plaintiffs' action be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
By way of background, on July 31, 2023, the Honorable Ann M. Donnelly, U.S. District Judge, entered an order advising Plaintiffs that Rule 4(i)(1) of the Federal Rules of Civil Procedure requires Plaintiffs “to file proof of service upon the U.S. Attorney for the Eastern District of New York.” (July 31, 2023 ECF Order.) In addition, Judge Donnelly's July 31, 2023 Order directed Plaintiffs to file the proof of service by August 31, 2023. (Id.)
Thereafter, on October 3, 2023, the undersigned Magistrate Judge issued an Order noting that proper proof of service on the United States had still not been filed and directing Plaintiffs to file proof of service by November 2, 2023. (Order, ECF No. 6, at 2.) The Court's October 3, 2023 Order also advised Plaintiffs that if they did not file proof of service by November 2, 2023, the Court would recommend that the case be dismissed without prejudice. (Id.) Plaintiffs failed to file proof of service by November 2, 2023.
For the foregoing reasons, it is respectfully recommended that this case be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
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Any objections to this Report and Recommendation must be filed with the Clerk of Court within fourteen (14) days. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; see also Fed. R. Civ. P. 6(a) (providing the method for computing time). Failure to file objections within the specified time waives the right to appeal the District Court's order. See, e.g., Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008) (explaining that “failure to object timely to a . . . report [and recommendation] operates as a waiver of any further judicial review of the magistrate [judge's] decision” (quotation marks omitted)).
SO ORDERED.