Opinion
Civil Action 23 Civ. 8763 (JMF) (SLC)
01-19-2024
LYNN ZELVIN, on behalf of himself and all others similarly situated, Plaintiff, v. COLLECTIBLEXCHANGE, LLC, Defendant.
TO THE HONORABLE JESSE M. FURMAN, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
SARAH L. CAVE UNITED STATES MAGISTRATE JUDGE
Plaintiff Lynn Zelvin (“Plaintiff”) filed the Complaint in this matter on October 5, 2023. (ECF No. 1 (the “Complaint”)). The Federal Rules of Civil Procedure provide:
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 90-day period for service expired on January 3, 2024.
On January 4, 2024, Plaintiff having filed to file a return of service for the summons and Complaint as to Defendant CollectibleXchange, LLC (“Defendant”) or to request an extension on a showing of good cause to do so, the Court directed Plaintiff to show cause why his claims against Defendant should not be dismissed under Federal Rules of Procedure 4(m) and/or 41(b) for failure to prosecute. (ECF No. 7 (the “OTSC”)). The Court directed Plaintiff to make any such showing by affidavit or declaration filed on or before January 18, 2024. (Id.) The Court warned Plaintiff that “failure to comply with this [OTSC] may in itself result in dismissal of this action.” (Id.) To date, Plaintiff has not responded to the OTSC or otherwise communicated with the Court.
Accordingly, the Court respectfully recommends that Plaintiff's claims against Defendant be DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 4(m). See, e.g., Shipco Transp., Inc. v. Arrogant Steel, LLC, No. 22 Civ. 2459 (JMF), 2022 U.S. Dist. LEXIS 123136, at *1 (S.D.N.Y. July 12, 2022); Paguada v. Salton Appliances (1985) Corp., No. 20 Civ. 5523 (JMF), 2020 U.S. Dist. LEXIS 235636, at *1 (S.D.N.Y. Dec. 15, 2020). NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Furman.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).