Opinion
No. 2:09-cv-02231-JPM-cgc.
April 27, 2010
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR UNTIMELY SERVICE
Before the Court is Defendant Martin Rodrigues's pro se Motion to Dismiss for Untimely Service (Docket Entry ("D.E.") 27), filed December 28, 2009. Plaintiff has not responded to this motion. For the following reasons, Rodrigues's motion is GRANTED.
The complaint in this matter was filed on April 17, 2009 (D.E. 1), and a summons was issued for Rodrigues on April 21, 2009 (D.E. 6). Rodrigues's motion is accompanied by a declaration indicating that he has not been served. (Def.'s Mot. to Dismiss for Untimely Service Ex. 2, Decl. of Martin Rodrigues 1.) Rodrigues contends that he is subject to service outside the United States. (Id.) Federal Rule of Civil Procedure 4(m)'s requirement that service be made within 120 days of the filing of the complaint is thus inapplicable. See Fed.R.Civ.P. 4(m). Nonetheless, "[i]t is well established that in cases involving improper service, courts have broad discretion to dismiss the action." Sherer v. Construcciones Aeronauticas, S.A., 987 F.2d 1246, 1247 (6th Cir. 1993) (citing 5A Charles Alan Wright Arthur R. Miller, Federal Practice Procedure § 1354 at 288 (2d ed. 1987)).
Plaintiff has made no effort to explain the lack of service or request an extension of time in which to effectuate service, despite the fact that this action was filed over a year ago. Rodrigues's motion is therefore GRANTED, and Plaintiff's claims against him are DISMISSED without prejudice. Cf. Fed.R.Civ.P. 4(m) (allowing a district court to dismiss an action against a defendant without prejudice where service is untimely).
IT IS SO ORDERED.