Filed: Dec. 16, 2016
Latest Update: Dec. 16, 2016
Summary: Report and Recommendation to Dismiss Certain Defendants Without Prejudice DEBRA McVICKER LYNCH , Magistrate Judge . Rule 4(m) of the Federal Rules of Civil Procedure requires a defendant to be served within 90 days after a complaint is filed. Plaintiff J & J Sports Productions, Inc. filed its complaint on April 29, 2016. In response to the court's October 20, 2016 order requiring the plaintiff to show cause why its complaint should not be dismissed without prejudice under Rule 4(m), J & J f
Summary: Report and Recommendation to Dismiss Certain Defendants Without Prejudice DEBRA McVICKER LYNCH , Magistrate Judge . Rule 4(m) of the Federal Rules of Civil Procedure requires a defendant to be served within 90 days after a complaint is filed. Plaintiff J & J Sports Productions, Inc. filed its complaint on April 29, 2016. In response to the court's October 20, 2016 order requiring the plaintiff to show cause why its complaint should not be dismissed without prejudice under Rule 4(m), J & J fi..
More
Report and Recommendation to Dismiss Certain Defendants Without Prejudice
DEBRA McVICKER LYNCH, Magistrate Judge.
Rule 4(m) of the Federal Rules of Civil Procedure requires a defendant to be served within 90 days after a complaint is filed. Plaintiff J & J Sports Productions, Inc. filed its complaint on April 29, 2016. In response to the court's October 20, 2016 order requiring the plaintiff to show cause why its complaint should not be dismissed without prejudice under Rule 4(m), J & J filed proof of service for one defendant, Samuel Barrera (Dkt. 11), and explained it had been unable to serve the two others. J & J requested, and was granted, additional time to serve the two other defendants, and was required to serve them by December 1, 2016.
On December 14, 2016, J & J notified the court it still has been unable to serve the remaining defendants. Under these circumstances, where the complaint was filed nearly eight months ago, the plaintiff already has been given the additional time it requested to complete service, and the plaintiff has been unable to effect service, the magistrate judge recommends that the district judge DISMISS WITHOUT PREJUDICE under Rule 4(m), the plaintiff's claims against defendants Benito Brito Flores and Rest Mex, Inc.
Further, J & J must take action on its claims against defendant Samuel Barrera, for whom J & J filed proof of service. If J & J intends to seek an entry of default under Rule 55(a), it should do so promptly.
Conclusion
For the foregoing reasons, the magistrate judge recommends that the district judge dismiss without prejudice the claims against Benito Brito Flores and Rest Mex, Inc.
Any objections to this Report and Recommendation must be filed in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). The failure to file objections within fourteen days after service will constitute a waiver of subsequent review absent a showing of good cause for that failure. The parties should not anticipate any extension of this deadline or any other related briefing deadlines.
IT IS SO RECOMMENDED.
