Opinion
22-12366
08-02-2023
ROBERT LEE DRAIN a/k/a DARIOUS DANYEL WHITE, Plaintiff, v. BRIAN DUNN & AMANDA LNU, Defendants.
Terrence G. Berg, United States District Judge
REPORT AND RECOMMENDATION REGARDING DEFENDANT AMANDA LNU
Curtis Ivy, Jr., United States Magistrate Judge
Plaintiff, proceeding without the assistance of counsel, filed this case on October 5, 2022. (ECF No. 1). This matter is presently before the Court regarding Plaintiff's failure to provide the Court with the full name of Defendant Amanda LNU so that service may be attempted and Plaintiff's failure to respond to the Court's order to show cause. (ECF Nos. 11; 14).
On February 1, 2023, the Court ordered Plaintiff to provide full names for Defendants Amanda LNU and Defendant Dunn for service of process. (ECF No. 11). In response, Plaintiff only provided the full name of Defendant Dunn. (ECF No. 13). Plaintiff did not provide the full name of Defendant Amanda LNU. On March 27, 2023, the Court ordered Plaintiff to show cause why Defendant Amanda LNU should not be dismissed for failure to prosecute the case against her or, alternatively, to provide the Court her full name so service may be attempted. (ECF No. 14). To date, Plaintiff has not responded to the Court's Order.
I. Analysis
Federal Rule of Civil Procedure 4(m) provides that if service is not effectuated within 90 days, the Court must dismiss the action without prejudice as to that defendant. “Absent a showing of good cause to justify a failure to effect timely service, the Federal Rules of Civil Procedure compel dismissal.” Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996) (citing Habib v. General Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994)). It is plaintiff's burden to establish good cause for failing to timely effect service. Habib, 15 F.3d at 73.
To date, Plaintiff has not responded to the Order to Show Cause or otherwise served Defendant Amanda LNU with the summons and complaint. Thus Defendant Amanda LNU remains unserved. The undersigned therefore recommends that Plaintiff's complaint be dismissed without prejudice pursuant to Rule 4(m) against Defendant Amanda LNU. See Habib, 15 F.3d at 73 (“Absent a showing of good cause to justify a failure to effect timely service, the Federal Rules of Civil Procedure compel dismissal.”); see also Price v. Howard, 2011 WL 4496661, at *3 (W.D. Mich. Sept. 27, 2011) (pro se prisoner's claims against John Doe defendant “dismissed without prejudice for failure to effect timely service”).
II. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS that Plaintiff's complaint be DISMISSED without prejudice against Defendant Amanda LNU under Federal Rule of Civil Procedure 4(m).
The parties to this action may object to and seek review of this Report and Recommendation but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health and Hum. Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health and Hum. Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Loc. 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.