Opinion
6:22-cv-01233-TC-KGG
04-10-2023
WAYDE WOMACK, doing business as Womack Angus, et al., Plaintiffs, v. MCCABE BACKGROUNDING, LLC, et al., Defendants.
NOTICE AND ORDER TO SHOW CAUSE
KENNETH G. GALE KENNETH G. GALE U.S. MAGISTRATE JUDGE
On October 13, 2022, Plaintiffs, Wayde Womack, et al., filed a Complaint naming as Defendants, Ashley McCabe, McCabe Backgroundng, LLC, Ethan McCabe, Flinton McCabe, McCabe Genetics Transportation, LLC, Kyla McCabe, Randy McCabe, and Varee McCabe. (Doc. 1). Plaintiffs filed a civil cover sheet and received a notice of judge assignment on the next day. Summons was issued; however, in accordance with Fed.R.Civ.P. 15(a), Plaintiffs filed an amended complaint on January 6, 2023. (Doc. 3). The amended complaint removed from the Complaint as Defendants Ashley McCabe, Kyla McCabe, and Varee McCabe. Summon was issued on the same day, and an Alias Summons was issued four days later on January 10, 2023. No other action has been taken to prosecute the case.
Federal Rule of Civil Procedure 4(m) governs the time limit for service. Rule 4(m) provides that “[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 or order that service be made within a specified time.” Additionally, Fed.R.Civ.P. 41(b) provides that the court may dismiss an action for failure to prosecute. Here, Plaintiffs never effectuated service of the original complaint, but instead filed an amended complaint on January 6, 2023-four days before the time to effectuate service expired. The time to effectuate service was reset when the amended complaint was filed; however, the Court has been provided no notice that service has been effectuated. Plaintiffs have not effectuated service of the summons (or the alias summons) on the Defendants and more than 90 days have passed since the amended complaint was filed, and nearly six-months since the original complaint was filed.
Accordingly, the Court orders Plaintiffs to show cause in writing by April 24, 2023, as to why the undersigned Magistrate Judge should not recommend that its claims be dismissed pursuant to Rule 4(m) and/or Rule 41(b).
IT IS SO ORDERED.