Opinion
No. 02-4032-SAC
November 6, 2002.
ORDER
The United States Magistrate Judge issued a notice and order to show cause why this case should not be dismissed in its entirety without prejudice for lack of prosecution under Fed.R.Civ.P. 4(m). (Dk. 2). The pro se plaintiff filed his complaint on February 19, 2002, and as of October 10, 2002, the court's records did not show that service on the defendants had been accomplished. In response to the show cause order, the plaintiff filed a response asking that the case not be dismissed and that additional time be given for accomplishing service. (Dk. 5). As for his showing of "good cause," the plaintiff attributes his failure to serve the defendants "to plaintiffs lengthy illness and have had to seek medical treatment and continue to receive treatment as of this day." (Dk. 5).
The plaintiff bears the burden of proving "good cause" for an extension. The plaintiff's stated reason fails to meet this threshold. First, the plaintiff offers the court no details or proof concerning what he describes as a lengthy illness and medical treatment. The court has no basis for concluding that the illness and treatment left the plaintiff incapacitated and unable to attempt service or to seek a timely extension. Second, the plaintiff offers no proof that he acted diligently in any regard in waiting eight months before asking the court for an extension. Third, the plaintiff's pro se status is certainly a mitigating circumstance, but it is not automatically enough to constitute good cause particularly when the plaintiff can point to no diligent efforts on his part and no justifiable reliance on anyone else. Thus, the court finds that the plaintiff has not carried his burden of proving good cause for an extension.
Because the plaintiff has not complied with Fed.R.Civ.P. 4(m), the court dismisses this case in its entirety without prejudice for lack of prosecution. Additionally, the court notes that the plaintiff's complaint fails to allege on its face any factual basis that would support the exercise of federal jurisdiction.
IT IS THEREFORE ORDERED that the case is dismissed in its entirety without prejudice for lack of prosecution.