Opinion
3:23-cv-00104
05-10-2023
SHANIKA PRUITT, individually and on behalf of others similarly situated v. TRUE BLUE, INC.
Honorable William L. Campbell, Jr., United States District Judge
REPORT AND RECOMMENDATION
BARBARA D. HOLMES United States Magistrate Judge
For the reasons discussed below, the undersigned respectfully RECOMMENDS this case be DISMISSED WITHOUT PREJUDICE under Fed.R.Civ.P. 4(m).
Unless otherwise noted, all references to rules are to the Federal Rules of Civil Procedure.
Rule 4(m) mandates that if a defendant is not served with process within 90 days of the filing of the complaint, “the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant.” Fed.R.Civ.P. 4(m) (emphasis added). Rule 4(m) also provides that the court may “order that service be made within a specified time.” Id. Rule 4(m) also directs that “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m).
As described below, Plaintiff was provided notice of the potential dismissal of this case under Rule 4(m). See Docket No. 10. Further, this report and recommendation provides additional notice.
This case was filed on February 3, 2023. (Docket No. 1.) Under Rule 4(m), Defendant should have been served with process by no later than May 4, 2023. An initial case management conference was initially set for March 14, 2023. (Docket No. 4.) However, because Plaintiff had not yet completed service of process, the Court entered an order on March 8, 2023, which rescheduled the initial case management conference to May 31, 2023, to give Plaintiff additional time to serve Defendant. (Docket No. 10.) Of note, the order contained the following express direction and admonition:
Promptly upon service of process on Defendant, Plaintiff must file a return of service that confirms to Fed.R.Civ.P. 4(1). Plaintiff is cautioned that if service of process is not obtained in accordance with Fed.R.Civ.P. 4(m) and service of process proven as required, this case will be subject to dismissal without prejudice.(Id. at 1-2.) This warning apparently fell on blind eyes as there is no indication that Defendant has been served. Plaintiff and her counsel appear unable to follow plain and simple instructions provided in either orders of this Court or the Federal Rules of Civil Procedure.
This case has now been pending for more than 90 days without demonstration of service of process on Defendant. Plaintiff was given notice that failure to timely serve Defendant could result in dismissal. The plain language of Rule 4(m) requires that, under these circumstances, the case be dismissed without prejudice.
Further, it is the responsibility of Plaintiff and her counsel to manage this case without reminders or prompts by the Court. Their failure to do so has resulted in an inordinate expenditure of already limited judicial resources, which unfairly diverts the Court's attention from other matters in other cases in which the parties are properly attending to case management.
RECOMMENDATION
Based on the foregoing, it is respectfully RECOMMENDED that this case be dismissed without prejudice under Rule 4(m).
ANY OBJECTIONS to this Report and Recommendation must be filed within fourteen (14) days of service of this Report and Recommendation and must state with particularity the specific portions of this Report and Recommendation to which objection is made. Fed.R.Civ.P. 72(b)(2) and Local Rule 72.02(a). Failure to file written objections within the specified time can be deemed a waiver of the right to appeal the District Court's Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Any response to objections must be filed within fourteen (14) days of service of the objections. Fed.R.Civ.P. 72(b) and Local Rule 72.02(b).