Opinion
2:16-CV-01062-CB
12-17-2018
RAYCO SAUNDERS, Plaintiff, v. GFS ENTERTAINMENT GROUP, LLC, DARRYL ROBINSON, PRESIDENT; JAMES SMITH, PROMOTER GFS - ENTERTAINMENT, LLC; AND HAROLD DOTSON, Defendants
REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the court dismiss all of the claims against Defendants GFS Entertainment Group, LLC, James Smith for failure to conform with Rule 4(m).
II. REPORT
The instant case was commenced by Plaintiff, proceeding pro se and in forma pauperis, on July 20, 2016. Plaintiff filed an amended complaint on August 12, 2016 and was ordered to provide proper instructions to serve the complaint via summons upon the named Defendants, inter alia, GFS Entertainment Group, LLC and James Smith. (ECF No. 5). On October 19, 2016, the Amended Complaint, Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver addressed to GFS Entertainment Group, LLC was returned as undeliverable and the undersigned ordered Plaintiff to resubmit to the Court proper instructions for waiver of summons for service upon GFS Entertainment Group, LLC. (ECF Nos. 8 and 9). Plaintiff was informed that "failure to provide an adequate address for GFS Entertainment Group, LLC would result in that defendant being dismissed for failure to conform to Federal Rule of Civil Procedure 4(m). (ECF No. 9). After further failed attempts to effect service upon the defendants, the court permitted for personal service by the United States Marshal and ordered Plaintiff again to provide the court with reliable addresses for each defendant. (ECF Nos. 19, 20, 21).
Plaintiff was permitted to file a second amended complaint and did so on October 11, 2018. On October 18, 2018, the court ordered the United States Marshal to effectuate personal service of the Second Amended Complaint upon Defendants, including GFS Entertainment Group, LLC and James Smith with the addresses that Plaintiff provided. Plaintiff was informed that "failure to provide the court with an adequate address for [James Smith and GFS Entertainment Group, LLC] may result in Plaintiff's case being dismissed for failure to conform with Federal Rule of Civil Procedure 4(m)." (ECF No. 38). The GFS Entertainment Group, LLC and James Smith summons was returned unexecuted on November 20, 2018. The summons indicated: "[i]nvalid address building was a Verizon building." (ECF No. 41).
Federal Rule of Civil Procedure 4(m) directs district courts to dismiss an action upon a plaintiff's failure to effect timely service:
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. But 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). Plaintiff has not effectuated service on either GFS Entertainment LLC or James Smith, although both of those defendants have been named in the original complaint and multiple attempts at service have been unsuccessful due to Plaintiff's failure to provide the court for an accurate address of these defendants. Accordingly, it is respectfully recommended that the claims against GFS Entertainment, LLC and James Smith be dismissed without prejudice.
Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until January 7 , 2019 to file objections to this report and recommendation. See LCvR 72.C. Failure to file timely objections may constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).
Respectfully recommended:
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge cc: RAYCO SAUNDERS
10214 Frankstown Rd
Pittsburgh, PA 15235