Opinion
C. A. 9:22-cv-00511-MGL-MHC
04-11-2023
Larry James Tyler, Plaintiff, v. James Hudson, Diann Wilks, and Dr. John Trogoon, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This action was filed by Plaintiff, proceeding pro se, on February 17, 2022. ECF No. 1. Summonses were issued on April 21, 2022. ECF No. 12. On July 19, 2022, the Summons for Defendant Dr. John Trogoon was returned unexecuted. ECF No. 20. The Return indicates that the United States Marshal has been unable to locate this Defendant. Id.
Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, “[i]f 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 . . . [b]ut 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); see Attkisson v. Holder, 925 F.3d 606, 627 (4th Cir. 2019), as amended (June 10, 2019) (“Rule 4(m) requires the dismissal of defendants who remain unserved ninety days after the filing of a complaint unless ‘the plaintiff shows good cause.'”).
On August 30, 2022, the Court issued an Order advising Plaintiff that he is responsible for providing information sufficient to effect service on Defendants and that Defendant Trogoon may be dismissed as a party Defendant if he is not served with process. ECF No. 22. The Court directed Plaintiff to provide additional identification or location information he may have for Defendant Trogoon on or before September 23, 2022. Notwithstanding this Order, Plaintiff has not provided any additional information pertaining to Defendant Trogoon for purposes of service of process.
Unless Plaintiff has made proper service on Defendant Trogoon, this case against Defendant Trogoon is subject to dismissal. Therefore, Plaintiff is herein specifically advised and placed on notice that, in response to this Report and Recommendation, he is to provide good cause to the Court for any failure to serve Defendant Trogoon, within fourteen (14) days of the filing of this Report and Recommendation. Failure to do so may result in Defendant Trogoon being dismissed.
Based on the foregoing, the undersigned RECOMMENDS, pursuant to Rule 4(m), Fed. R. Civ. P., that this case be DISMISSED, without prejudice, as against Defendant Trogoon. However, if in response to this Report and Recommendation, Plaintiff submits to the Court materials clearly showing good cause for failure to serve Defendant Trogoon, then it is RECOMMENDED that this Report and Recommendation be VACATED and the matter returned to the undersigned for further proceedings.
In the event Plaintiff has failed to serve Defendant Trogoon with service of process, but submits material to the Court asserting good cause for such failure, whether or not to accept Plaintiff's assertions of good cause shall be in the discretion of the District Judge in her review of this Report and Recommendation. See, e.g., Brooks v. Johnson, 924 F.3d 104, 120 (4th Cir. 2019) (explaining that dismissal under Rule 4(m) is reviewed for abuse of discretion).
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).