Opinion
CIVIL ACTION NO: 1:18CV188
03-13-2020
CASEY ELAINE SMALLWOOD, Plaintiff, v. NANCY A. BERRYHILL, Commissioner of Social Security Administration, Defendant.
(KEELEY)
REPORT AND RECOMMENDATION
On October 4, 2018, Plaintiff Casey Elaine Smallwood ("Plaintiff"), by and through her attorney, David C. Fuellhart, Esq., filed a Complaint against the Commissioner of the Social Security Administration. [ECF No. 1]. On the same date, Plaintiff paid the full filing fee. However, to date, Plaintiff has not begun the process for serving Defendant with a copy of the Complaint. According to this Court's Local Rules of General Practice and Procedure, a plaintiff who is not proceeding in forma pauperis "must prepare the summonses in paper form and provide them to the Clerk's office, who will sign and seal the completed forms and return them...[to the plaintiff]...to serve the summons." LR Gen P 5.06(c). "It is the responsibility of the parties, not the Clerk's office, to serve the summons." Id.
Pursuant to Rule 4 of the Federal Rules of Civil Procedure, a plaintiff has ninety (90) days after the complaint is filed to effect service. Fed. R. Civ. P. 4(m). Rule 4 further provides that if a plaintiff does not effectuate service within this ninety (90) day period, "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." Id. The time period in which a plaintiff may serve a copy of the Complaint may be extended "if the plaintiff shows good cause" for failing to serve the defendant within the required ninety (90) day time period. Id. In the present case, the Court has calculated that Plaintiff's ninety (90) day deadline to accomplish service expired on or about January 4, 2019.
On February 10, 2020, the undersigned issued an Order to Show Cause [ECF No. 2] directing Plaintiff to serve Defendant with a copy of Plaintiff's Complaint and file proof of said service, or alternatively, to show cause why the undersigned should not recommend that this action be dismissed without prejudice. Plaintiff was to take the aforementioned action(s) by March 10, 2020. As of this date, there is no evidence that Plaintiff has served Defendant with a copy of her Complaint, and Plaintiff has failed to show good cause why service has not been accomplished.
Accordingly, and for all of the foregoing reasons, the undersigned RECOMMENDS that Plaintiff's Complaint [ECF No. 1] be DISMISSED without prejudice for failure to effectuate service upon Defendant, and/or failing to show good cause why such service was not accomplished within the time allotted by the rules.
Any party who appears pro se and any counsel of record, as applicable, may, within fourteen (14) days after being served with a copy of this Report and Recommendation, file with the Clerk of the Court written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection.
A copy of such objections should be submitted to the District Judge of Record. Failure to timely file objections to the Report and Recommendation set forth above will result in waiver of the right to appeal from a judgment of this Court based upon such Report and Recommendation. See 28 U.S.C. § 636(b)(1); Wright v. Collins , 766 F.2d 841, 845-48 (4th Cir. 1985); United States v. Schronce , 727 F.2d 91, 94 (4th Cir. 1984), cert. denied , 467 U.S. 1208 (1984); see also Thomas v. Arn , 474 U.S. 140, 155 (1985).
The Court DIRECTS the Clerk of the Court to provide a copy of this Order to any parties who appear pro se and all counsel of record, as in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.
DATED: 3/13/2020
/s/_________
JAMES P. MAZZONE
UNITED STATES MAGISTRATE JUDGE