Magistrate Judge Dena Hanovice Palermo issued a detailed report recommending that all of Plaintiff's claims be dismissed with prejudice. Moskovits v. Mercedes-Benz Fin. Servs. USA, LLC, No. 4:21-CV-2260, 2022 WL 3969547, at *1 (S.D. Tex. July 18, 2022), report and recommendation adopted, No. 4:21-CV-02260, 2022 WL 3998507 (S.D. Tex. Aug. 31, 2022), appeal dismissed sub nom. Moskovits v. Mercedes-Benz Fin. Servs. USA, L.L.C., No. 22-20522, 2023 WL 2770957 (5th Cir. Mar. 22, 2023), and aff'd sub nom. Moskovits v. Mercedes-Benz Fin. Servs. USA, L.L.C., No. 22-20522, 2023 WL 6972986 (5th Cir. Oct. 23, 2023). United States District Judge Keith P. Ellison adopted Judge Palermo's recommendations in full and the Fifth Circuit Court of Appeals affirmed the district court's decision.
“The DTPA defines an unconscionable action as one which ‘takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree' and to the consumer's detriment.” Moskovits v. Mercedes-Benz Fin. Services USA, LLC, No. 4:21-CV-2260, 2022 WL 3969547, at *5 (S.D. Tex. July 18, 2022) (quoting TEX. BUS. & COM. CODE § 17.45(5), report and recommendation adopted, No. 4:21-CV-02260, 2022 WL 3998507 (S.D. Tex. Aug. 31, 2022), appeal dismissed sub nom. Moskovits v. Mercedes-Benz Fin. Services USA, L.L.C., No. 22 20522, 2023 WL 2770957 (5th Cir. Mar. 22, 2023)
The record does not evidence that good cause exists to provide Plaintiff any additional extension of time for service beyond the extensions already granted. It is true that, “[d]espite this failure, ‘[t]he Court rarely dismisses a case due to the failure to properly serve a defendant' and ‘[o]n occasions where the Court has granted dismissal for improper service, it was only after multiple chances were given.” Moskovits v. Mercedes-Benz Fin. Servs. USA, LLC, No. 4:21-CV-2260, 2022 WL 3969547, at *13 (S.D. Tex. July 18, 2022) (quoting Coleman v. Carrington Mortgage Servs., LLC, No. 4:19-CV-00231-ALM-CAN, 2020 WL 4723174, at *5 (E.D. Tex. July 27, 2020) (internal quotation marks omitted)), report and recommendation adopted, No. 4:21-CV-02260, 2022 WL 3998507 (S.D. Tex. Aug. 31, 2022). Multiple chances have been given in this case. See Stewart v. City of Irving, No. 3:17-CV-3296-G-BK, 2018 WL 2323257, at *1 (N.D. Tex. Apr. 16, 2018) (recommending dismissal under Rule 4(m) for failing to serve or respond to the court's notice of impending dismissal), report and recommendation adopted, No. 3:17-CV-3296-G (BK), 2018 WL 10435253 (N.D. Tex. May 1, 2018); Ceaser v. United States, No. 1:18-CV-560, 2019 WL 2112993, at *1 (E.D. Tex. Mar. 28, 2019) (same), report and recommendation adopted subnom. Ceaser v. United States, No. 1:18-CV-560, 2019 WL 2114026 (E.D. Tex. May 13, 2019). Because good cause does not exist to again extend the time period for service any further, the Court recommends this case be dismissed without prejudice under Federal Rule of Civil Procedure 4(m).
; see also Bowling v. Childress-Herres, No. 4:18-CV-610-ALM-CAN, 2019 WL 4463450, at *6 (E.D. Tex. Aug. 7, 2019) (providing the plaintiff multiple opportunities to serve the defendant), report and recommendation adopted, No. 4:18-CV-610, 2019 WL 4451122 (E.D. Tex. Sept. 17, 2019); Moskovits v. Mercedes-Benz Fin. Servs. USA, LLC, No. 4:21-CV-2260, 2022 WL 3969547, at *13 (S.D. Tex. July 18, 2022) (“Despite this failure, ‘[t]he Court rarely dismisses a case due to the failure to properly serve a defendant' and ‘[o]n occasions where the Court has granted dismissal for improper service, it was only after multiple chances were given.”) (quoting Coleman v. Carrington Mortgage Servs., LLC, No. 4:19-CV-00231-ALM-CAN, 2020 WL 4723174, at *5 (E.D. Tex. July 27, 2020) (internal quotation marks omitted)), report and recommendation adopted, No. 4:21-CV-02260, 2022 WL 3998507 (S.D. Tex. Aug. 31, 2022). As to the remaining defendants, the Court has already permitted Plaintiff until March 6, 2023, to complete service. Specifically, on February 1, 2023, the Court denied Plaintiff's motion requesting the Court to serve, providing the following:
4:21-CV-2260, 2022 WL 3969547, at *13 (S.D. Tex. July 18, 2022) (quoting Coleman v. Carrington Mortgage Servs., LLC, No. 4:19-CV-00231-ALM-CAN, 2020 WL 4723174, at *5 (E.D. Tex. July 27, 2020) (internal quotation marks omitted)), report and recommendation adopted, No. 4:21-CV-02260, 2022 WL 3998507 (S.D. Tex. Aug. 31, 2022). Multiple chances have been given in this case. Plaintiff received notice of the defects at the time Defendant filed its Motion to Dismiss.