Opinion
Civil Action 22-1001
01-13-2023
CHAD STANTON, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Defendant.
William S. Stickman, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELL, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that the Complaint be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Chad Stanton commenced this counseled wrongful termination action with the filing of a Complaint against the Defendant Commonwealth of Pennsylvania Department of Corrections (“DOC”) on July 8, 2022. ECF No. 1. Plaintiff alleges claims for unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, as well as violations of public policy and internal procedures arising from his termination for failing to report to work as ordered after sustaining an injury.
As of October 24, 2022, Plaintiff had not yet served his Complaint on the Defendant. This Court entered an Order to Show Cause why this case should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m) for failure to serve the Complaint within 90 days. ECF No. 4.
As of today, Plaintiff has not responded to the Order to Show Cause and, despite obtaining a Summons, the record does not reflect valid service of the Complaint upon the Defendant.
B. DISCUSSION
In addition to setting time limits for service, Rule 4 prescribes the sanction of dismissal for the failure to make proper and timely service:
(m) Time Limit for 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).
The language of Rule 4(m) is both clear and mandatory. Where there is an unjustified and unexcused failure to timely serve a complaint the court “must dismiss the action.” See Beckerman v. Susquehanna Township Police, 254 Fed.Appx. 149,154 (3d Cir. 2007). Thus, an order dismissing the case is properly entered when a plaintiff fails to make service, despite warnings and requests by the court to address service issues. Foster v. Pennsylvania Human Relations Comm'n, 157 Fed.Appx. 488, 490 (3d Cir. 2005).
In this case, Plaintiff has provided no proof of proper service more than five months after this action commenced, despite having been instructed to do so. Moreover, the Order to Show Cause regarding service notified Plaintiff of his obligation to serve Defendant within 90 days of the filing of this action, and instructed the plaintiff to make service or show cause on or before November 8,2022, why this matter should not be dismissed without prejudice for failure to affect proper service of the complaint. ECF No. 4. Despite this notice and warning, Plaintiff has neither served the complaint, nor sought a further extension of time in which to make service, nor responded to the show cause order. Given Plaintiffs ongoing failure to abide to the Court's Order and the Rules of Civil Procedure, dismissal is appropriate. See e.g., Beckerman, 254 Fed.Appx. at 154 (affirming dismissal for failure to serve two days after service deadline elapsed where no good cause shown).
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Complaint be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
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 in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. 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.