Opinion
1:21-cv-01108-STA-jay
07-20-2022
JAMES A. KEMP, Plaintiff, v. TENNESSEE CHILD SUPPORT Defendants.
REPORT AND RECOMMENDATION
JON A. YORK UNITED STATES MAGISTRATE JUDGE
Before the Court is the pro se Complaint filed by Plaintiff James Kemp (“Plaintiff”), filed on July 22, 2021. (D.E. 1.) Plaintiff originally filed for and was granted in forma pauperis status. (D.E. 7 & 8.) Subsequently, Plaintiff paid the filing fee. (D.E. 12.) Since paying the filing fee, Plaintiff has not served process on Defendant Tennessee Child Support (“Defendant”). Pursuant to Administrative Order No. 2013-05, this case has been referred to the United States magistrate judge for management and for all pretrial matters for determination and/or report and recommendation as appropriate.
Rule 12(b)(5) of the Federal Rules of Civil Procedure provides that a complaint may be dismissed for insufficient service of process. Pursuant to Rule 4(1), “[u]nless service is waived, proof of service must be made to the court.” Service of process is insufficient when a party has not complied with Rule 4(m) of the Federal Rules of Civil Procedure, which requires a defendant to be served within ninety days after the complaint is filed. U.S. ex rel. Howard v. Life Care Centers of America, Inc., No. 1:03-CV-41, 2005 U.S. Dist. LEXIS 25443 at *1 (E.D. Tenn. Oct. 20, 2005). Rule 4(m) provides that, if a plaintiff fails to comply, 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.” Rule 4(m) further provides that, “[i]f the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.”
Plaintiff filed the complaint on July 22, 2021. (D.E. 1). As of July 11, 2022, Plaintiff has not completed and returned any summon for issuance, and no proof of service has been made to the Court. Because Plaintiff has failed to comply with Rules 4(1) and 4(m), the Magistrate Judge RECOMMENDS that this matter be dismissed without prejudice.
ANY OBJECTIONS OR EXCEPTIONS TO THIS REPORT AND RECOMMENDATION MUST BE FILED WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THE REPORT AND RECOMMENDATION. 28 U.S.C. § 636(b)(1). FAILURE TO FILE THEM WITHIN FOURTEEN (14) DAYS MAY CONSTITUTE A WAIVER OF OBJECTIONS, EXCEPTIONS, AND ANY FURTHER APPEAL.