Opinion
CIVIL ACTION NUMBER 14-165-SDD-SCR
10-20-2014
ROSELLE WEATHERSBY, ET AL v. PEDRO VELOZ, ET AL
NOTICE
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court.
In accordance with 28 U.S.C. §636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Baton Rouge, Louisiana, October 20, 2014.
/s/_________
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
MAGISTRATE JUDGE'S REPORT
When a review of the record showed that defendants Pedro Veloz and Veloz Transport & Trucking Repair, Inc. had not file an answer or otherwise made an appearance, the record did not indicate that they had been served with a summons and the complaint or waived service, and the time to serve the defendants, as provided by Rule 4(m), Fed.R.Civ.P., had expired, the plaintiffs were was ordered to show cause why their claims against these defendants should not be dismissed pursuant to Rule 4(m), Fed.R.Civ.P.
Record document number 8. Failure to serve these defendants was noted in the Status Report. Record document number 5, p. 2. Plaintiffs were previously notified in the Scheduling Order of the possibility of dismissal for failure to timely serve these defendants. Record document number 6, Scheduling Order, p. 2.
Plaintiffs did not file any response to the show cause order. Nor did they move for additional time to serve either of these defendants since the failure to serve them was noted in the Status Report filed more than four months ago. A review of the record showed that neither of these defendants has filed an answer, waived service or otherwise made an appearance.
RECOMMENDATION
It is the recommendation of the magistrate judge that the plaintiffs' claims against defendants Pedro Veloz and Veloz Transport & Trucking Repair, Inc. be dismissed without prejudice pursuant to Rule 4(m).
A dismissal without prejudice would not effectively be a dismissal with prejudice in this case if the plaintiffs sued these defendants again. Plaintiffs timely sued these defendants' and their insurer, Northland Insurance Company, in state court. A timely suit filed in a court with jurisdiction and in the proper venue interrupts prescription as to other solidary obligors. Louisiana Civil Code Article 1799 (interruption as to solidary obligors) and Article 2324(c) (interruption as to joint tortfeasors); Smith v. Fred's Stores of Tenn., Inc., 2007 WL 3245443 (E.D.La. 2007).
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Baton Rouge, Louisiana, October 20, 2014.
/s/_________
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE