Opinion
Civil Action 23-1549
01-10-2024
KENNETH RUBINOSKI, Plaintiff, v. ALLEGHENY COUNTY DA et al, Defendant.
W. Scott Hardy District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that pursuant to Federal Rule of Civil Procedure 4(m), this action be dismissed without prejudice due to Plaintiff's failure to timely serve the Complaint on any named defendant or to show cause why this action should not be dismissed after appropriate notice by the Court.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Kenneth Rubinoski (“Plaintiff”) commenced this pro se action with the filing of a Complaint on August 28, 2023. ECF No. 1. Plaintiff has not filed a motion to proceed in forma pauperis and has paid the appropriate filing fee. However, as reflected on the docket of this matter, Plaintiff has not filed proof that he served any named defendant with a summons and a copy of the Complaint as required by the Federal Rules of Civil Procedure.
On December 4, 2023, the Court entered an Order to Show Cause why this case should not be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure for failure to timely serve the Complaint. ECF No. 6. Plaintiff was instructed that the failure to show good cause or otherwise respond would result in the dismissal of this action without prejudice. Id. Plaintiff's response was due by December 22, 2023. The Order to Show Cause was mailed on December 4, 2023 and has not been returned to the Court. Thus, there nothing to indicate that the Court's Order to Show Cause was not received by Plaintiff. To date, Plaintiff has not responded to the Order to Show Cause.
B. DISCUSSION
Federal Rule of Civil Procedure 4(m) sets forth the time limit for service of the summons and a copy of the complaint: “If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m). The court may extend the time for service “for an appropriate period” if the plaintiff is able to show “good cause for the failure” to timely serve. Id.
Here, Plaintiff has neither served the Complaint nor moved for an extension of time upon a showing of good cause. The Court has provided the requisite notice to Plaintiff regarding his failure to comply with the applicable rules governing the orderly administration of litigation and instructed that this action would be dismissed absent a showing of good cause.
Ordinarily, Courts consider “three factors in determining the existence of good cause: (1) reasonableness of plaintiff's efforts to serve[;] (2) prejudice to the defendant by lack of timely service[;] and (3) whether plaintiff moved for an enlargement of time to serve.” MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (quoting United States v. Nuttall, 122 F.R.D. 163, 166-67) (D. Del. 1988). In this instance, Plaintiff has offered no information regarding the reasonableness of efforts to serve Defendants and has not moved for an enlargement of time. Under these circumstances, the Court is without a basis to extend time for service and, pursuant to Rule 4(m), dismissal is warranted.
C. CONCLUSION
For the foregoing reasons, pursuant to Rule 4(m), it is respectfully recommended that this action be dismissed without prejudice.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections within fourteen days, or seventeen days for unregistered ECF Users. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.