Opinion
CASE NO. 3:05-0677.
July 28, 2006
REPORT AND RECOMMENDATION
This matter is before the Court following Plaintiff's failure to comply with this Court's Order, entered June 14, 2006 (Docket No. 39), which required him to serve Defendant Denise Henderson with the Summons and Complaint in this case within thirty (30) days of the entry of that Order.
As the Court's previous Order noted, Plaintiff filed his Complaint on September 6, 2005. Docket No. 1. Shortly after filing his Complaint, Plaintiff filed a Motion Seeking an Additional Ninety Days In Which to Serve Defendant Denise Henderson. Docket No. 6. On October 6, 2005, the undersigned granted that Motion, which gave Plaintiff an additional ninety (90) days in which to serve Defendant Denise Henderson. Docket No. 13. That ninety (90) days was in addition to the 120 days allowed for service in Fed.R.Civ.P. 4(m). Thus, under Fed.R.Civ.P. 4(m) and the Court's previous Order, Plaintiff had until April 4, 2006, in which to serve Defendant Henderson. There is nothing in the record to indicate that he did so.
As the Court noted in its previous Order, however, it appeared that the pro se Plaintiff was confused as to how much time he actually had to accomplish service upon Defendant Henderson. Thus, the Court's previous Order granted Plaintiff's second "Motion For An Extension of Time For Process of Service [ sic] of his Complaint to Defendant Denise Henderson" (Docket No. 33), and the previous Order gave Plaintiff until July 14, 2006, in which to serve Defendant Henderson. Docket No. 39. The Court's previous Order stated, "If Plaintiff fails [to serve Defendant Henderson with the Summons and Complaint], the undersigned will recommend that his claims against Defendant Denise Henderson be dismissed pursuant to Fed.R.Civ.P. 4(m) and Fed.R.Civ.P. 41(b)."
In determining whether to dismiss a case under Rule 41(b), a Court should consider four factors: (1) whether the party's failure was due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. See Nader v. Land, 433 F.3d 496, 501-02 (6th Cir. 2002).
First, it is unclear whether Plaintiff's failure to serve Defendant Henderson was due to willfulness, bad faith, or fault.
Second, it does not appear that Defendant Henderson has been prejudiced by Plaintiff's conduct. In fact, Defendant Henderson has benefited from Plaintiff's failure to serve her, because she has not had to participate in the lawsuit.
Third, however, Plaintiff was warned that his failure to serve Defendant Henderson on or before July 14, 2006, could lead to a dismissal, and definitely would lead to a recommendation that this action be dismissed. Docket No. 39.
Finally, less drastic sanctions were imposed or considered. Specifically, the Court's June 14, 2006, Order gave Plaintiff and additional thirty (30) days in which to serve Defendant Henderson.
For the foregoing reasons, the undersigned recommends that this action be DISMISSED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has ten (10) days from receipt of this Report and Recommendation in which to file any written objections to this Recommendation with the District Court. Any party opposing said objections shall have ten (10) days from receipt of any objections filed in this Report in which to file any response to said objections. Failure to file specific objections within ten (10) days of receipt of this Report and Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed. 2d 435 (1985), reh'g denied, 474 U.S. 1111 (1986).