Opinion
DOCKET NO. 07-0030.
August 19, 2008
REPORT AND RECOMMENDATION
Plaintiff, Stephanie McKnight, filed the above-captioned suit on January 5, 2007, against defendants, Madison Parish School Board, Michael A. Johnson, and ABC Insurance Company. Three months after McKnight filed suit, her attorney withdrew from the case; since then, she has proceeded pro se. On July 25, 2007, the Clerk of Court issued a notice of intent to dismiss for failure to prosecute. ( See, doc. # 9). The notice stated that the case was subject to dismissal if plaintiff did not show cause within ten calendar days for her failure to perfect service against defendants. Id. In response, plaintiff filed the first of six motions for extension of time to serve defendants. ( See e.g., August 3, 2007, Motion). Plaintiff's latest motion for extension of time to serve defendants expired on August 15, 2008. ( See, July 29, 2008, Oral Order). To date, the docket sheet does not contain a return of service for defendant Michael Johnson.
Plaintiff has since substituted Lexington Insurance Company and National Union Fire Insurance Company for fictitious defendant, ABC Insurance Company.
Defendant, Madison Parish School Board waived service and filed responsive pleadings.
LAW AND ANALYSIS
In the absence of good cause, the Federal Rules of Civil Procedure provide for dismissal of an unserved defendant when, as here, service is not perfected within 120 days after suit is filed. Fed.R.Civ.P. 4(m). The instant case is over nineteen months old, and the latest extension of time to serve defendant, Johnson, has expired. For more than one year, the court has granted numerous extensions of time for plaintiff to serve Johnson and there is currently no expectation or reasonable likelihood that another extension will prove any more successful than the prior extensions. At this juncture, plaintiff has not demonstrated good cause for her continued failure to serve defendant, Johnson.For the foregoing reasons,
IT IS RECOMMENDED that plaintiff's claims against defendant, Michael A. Johnson, be DISMISSED, without prejudice. LR 41.3W, Fed.R.Civ.P. 4(m).
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and FRCP Rule 72(b), the parties have ten (10) business days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within ten (10) business days after being served with a copy thereof. A courtesy copy of any objection or response or request for extension of time shall be furnished to the District Judge at the time of filing. Timely objections will be considered by the District Judge before he makes a final ruling.
A PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN TEN (10) BUSINESS DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.