Opinion
Civil Action No. 7:10-CV-139 (HL).
April 11, 2011
ORDER
Before the Court is the Plaintiffs' reply to the Court's order to show cause (Doc. 16). For the following reasons, Defendant Richard Dunn is dismissed from this case without prejudice.
Rule 4(m) of the Federal Rules of Civil Procedure requires a plaintiff to serve the defendant within 120 of filing the complaint. Fed.R.Civ.P. 4(m). In this case, Plaintiffs did not serve Defendant Richard Dunn within 120 days. To this date, Defendant Richard Dunn has not been served.
Notice was provided to the Plaintiffs to show cause why their claims against Defendant Richard Dunn should not be dismissed for failure to serve. In their response to the show cause order, the Plaintiffs state that they were unable to effectuate serve upon Defendant Richard Dunn because all mail sent to his known addresses were returned to the Plaintiff. Plaintiffs do not object to the dismissal of Defendant Richard Dunn as a party to his case because the Defendant Noland Company admits that Defendant Richard Dunn was its employee at the time this cause of action arose. Based on the information before it, the Court concludes that the Defendant The Noland Company does not object to Defendant Richard Dunn's dismissal.
A district court may sua sponte dismiss an action against a defendant without prejudice when the plaintiff has not served the defendant if the court gives notice to the plaintiff. See Fed.R.Civ.P. 4(m). Dismissal of Richard Dunn is proper under Rule 4 since the Court provided notice to the Plaintiff and Richard Dunn has still not been served. Dismissal is proper also because the parties do not object to his dismissal and DefendantThe Noland Company admits that Defendant Richard Dunn was its employee. Accordingly, Defendant Richard Dunn is dismissed from this action. Defendant The Noland Company is the only Defendant remaining.