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FREDERICK v. CAPITAL ONE (USA) N.A., 14-CV-5460 (AJN). (2015)

Court: District Court, S.D. New York Number: infdco20151014c00 Visitors: 10
Filed: Oct. 13, 2015
Latest Update: Oct. 13, 2015
Summary: ORDER ALISON J. NATHAN , District Judge . On September 21, 2015, the Court ordered Plaintiff to show cause in writing as to why the claims against the Defendants who had not yet been served (Verizon Wireless, Consolidated Edison, Equifax Inc., and J. Brandon Black) should not be dismissed. See Dkt. No. 103. On October 9, 2015, Plaintiff submitted a letter indicating that he had requested Issuance of Summons on January 15, 2015 as to Defendants Verizon Wireless and Equifax Inc., but that n
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ORDER

On September 21, 2015, the Court ordered Plaintiff to show cause in writing as to why the claims against the Defendants who had not yet been served (Verizon Wireless, Consolidated Edison, Equifax Inc., and J. Brandon Black) should not be dismissed. See Dkt. No. 103. On October 9, 2015, Plaintiff submitted a letter indicating that he had requested Issuance of Summons on January 15, 2015 as to Defendants Verizon Wireless and Equifax Inc., but that no such summons was ever issued by the Clerk of the Court. See Dkt. No. 73, 116. Plaintiff provided no explanation for the failure to serve J. Brandon Black. See Dkt. No. 116. Plaintiff further indicated that he was withdrawing his action against Consolidated Edison. See Dkt. No. 116.

Federal Rule of Civil Procedure 4(m) provides that "[i]f a defendant is not served within 120 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant." Fed. R. Civ. P. 4(m). A district court may dismiss under Rule 4(m) after Plaintiff is given notice and an opportunity to "provide[] good cause for . . . failure to serve process." Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002). Plaintiffs Second Amended Complaint was filed on October 15, 2014, see Dkt. No. 22, and the above-named Defendants have still not been served. While Plaintiff has provided good cause as to why Verizon Wireless and Equifax Inc. have not been served, he has failed to do so with regard to J. Brandon Black.

As a result, Plaintiffs claims against J. Brandon Black are dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). Furthermore, Plaintiffs claims against Consolidated Edison are dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). The Clerk of the Court is ordered to issue summons as to Defendants Verizon Wireless and Equifax Inc., and Plaintiff is ordered to serve those Defendants on or before December 18, 2015.

SO ORDERED.

Source:  Leagle

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