Opinion
SA-23-CV-1278-JKP (HJB)
03-21-2024
G&G CLOSED CIRCUIT EVENTS, LLC as Broadcast Licensee of the 08/21/2021 Manny Pacquiao v. Yordenis Ugas Championship Fight Program, Plaintiff, v. EDEN FRESH, LLC d/b/a Skywalk Sports Bar & Grill, ISRAEL JEBARAJ d/b/a Skywalk Sports Bar & Grill, and GIPSON ELUMALAI d/b/a Skywalk Sports Bar & Grill, Defendants.
To the Honorable Jason K. Pulliam, 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, in which pretrial and scheduling matters have been referred to the undersigned for consideration pursuant to 28 U.S.C. § 636(b). (See Docket Entry 6.) For the reasons set out below, I recommend that this case be DISMISSED WITHOUT PREJUDICE under Federal Rule of Civil Procedure 4(m) for failure to effect timely service.
The Complaint in this case was filed on October 10, 2023 (Docket Entry 1); the service deadline was January 8,2024. See FED. R. Civ. P. 4(m) (setting 90-day deadline to effect service). Summons were issued as to Defendants (Docket Entry 4); however, no proof of service has been filed in the case. On January 16,2024, the Court issued an order requiring Plaintiff to show cause why this case should not be dismissed for failure to effect timely service under Federal Rule of Civil Procedure 4(m). (Docket Entry 7.) The deadline for response has passed, without response from Plaintiff.
Rule 4(m) requires that a defendant be served within 90 days after the complaint is filed. FED. R. CIV. P. 4(m). The plaintiff is responsible for having the summons and complaint served upon each defendant within the time allowed. FED. R. CIV. P. 4(C)(1). And unless service is waived, proof of service must be made to the Court. FED. R. CIV. P. 4(/)(l) Rule 4(m) further 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 that defendant or order that service be made within a specified time.” FED. R. CIV. P. 4(m). However, the Court must extend the time for service “if the plaintiff shows good cause for the failure.” Id.
In this case, there has been no showing made to the Court that Defendants were served with the 90 days contemplated by Rule 4(m). Additionally, no showing of good cause has been made, even though the undersigned provided Plaintiff with an opportunity to make such a showing. (See Docket Entry 7.) In such circumstances, dismissal of the action for failure of service is appropriate. See AI Advertising, Inc. v. Italeau, Inc., No. S A-23-CV-1227-JKP, 2024 WL 420163 (W.D. Tex. Feb. 5, 2023) (recommending dismissal under Rule 4(m) when Plaintiff did not respond to show cause order requiring proof of timely service); see also Thrasher v. City of Amarillo, 703 F.3d 509, 511-12 (5th Cir. 2013) (collecting cases under Rule 4(m)).
For the reasons set out above, I recommend that this case be DISMISSED WITHOUT PREJUDICE under Federal Rule of Civil Procedure 4(m) for failure to effect timely service.
Instruction for Service and Notice for Right to Object.
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 the 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 parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. An objecting party 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. Battle v. U.S. Parole Comm 'n, 834 F.2d 419, 421 (5th Cir. 1987).
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).