Opinion
Civil Action No. 3:04-CV-1844-R.
May 10, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Order Referring Case for Report and Recommendation, filed January 4, 2005, this case has been referred to the undersigned United States Magistrate Judge for report and recommendation.
Plaintiffs filed this case on August 24, 2004. On April 4, 2005, this Court issued an Order directing Plaintiffs to show cause for failure to file a valid return of service on Defendants, as required by FED. R. CIV. P. 4(m). Plaintiffs were ordered to show cause in writing on or before May 4, 2005, why service could not be made. Plaintiffs were also ordered to file a civil cover sheet, as required by Local Rule 3.1(c), and a separately signed certificate of interested persons, as required by Local Rules 3.1(f), 7.4, and 81.1(a)(3)(D). A review of the docket sheet reveals that Plaintiffs have not responded to the Court's order to show cause why service could not be made, nor have they filed a civil cover sheet or certificate of interested parties.
Proper service must be made within 120 days of filing a complaint or the action is subject to sua sponte dismissal, without prejudice. FED.R.CIV.P. 4(m). However, dismissal is not proper "if the plaintiff shows good cause for the failure" to properly effect service and a court should extend the time to serve the defendant. Id. The plaintiff bears the burden of showing good cause. Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988). "To establish 'good cause' the plaintiff must demonstrate at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually do not suffice." Lindsey v. U.S.R.R. Retirement Bd., 101 F.3d 444, 446 (5th Cir. 1996) (quoting Peters v. U.S., 9 F.3d 344, 345 (5th Cir. 1993)). A plaintiff also may be required to show that the party to be served personally received actual notice of the lawsuit; the defendant would not suffer any prejudice by the court extending the 120-day deadline; and the plaintiff would be severely prejudiced if his complaint were dismissed. Hickman v. U.G. Lively, 897 F.Supp. 955, 959 (S.D. Tex. 1995) (citing Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991)).
In the instant matter, Plaintiffs have not complied with Fed.R.Civ.P. 4(m) and Local Rule 4.1 by filing valid proof of service on any of the Defendants. In addition, Plaintiffs have failed to file a response to the Court's Order to show good cause for their failure to file valid proof of service. Accordingly, Plaintiffs' claims against Defendants should be dismissed without prejudice, pursuant to Fed.R.Civ.P. 4(m).
It is therefore RECOMMENDED that all claims and causes of action asserted against Defendants should be DISMISSED without prejudice to the refiling of same.
SO RECOMMENDED.