United States District Court, Southern District of New York
May 2, 2003
ANNETTE MENDOLIA, PLAINTIFF, AGAINST GENERAL MEDIA COMMUNICATIONS, INC. & FRANK DEVINO, DEFENDANTS.
The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Jed S. Rakoff, United States District Judge:
Plaintiff's pro se complaint in this action was filed on December 20, 2002. Rule 4(m) of the Federal Rules of Civil Procedure provides:
Time Limit for Service.
If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of
the complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall
dismiss the action without prejudice as to that
defendant or direct that service be effected within a
specified time; provided that if the plaintiff shows
good cause for the failure, the court shall extend the
time for service for an appropriate period. . . .
By Order dated January 13, 2003, I advised plaintiff that if the complaint was not properly served under Rule 4(m), that is, by April 21, 2003, I would recommend that the action be dismissed. (Dkt. No. 2.) I also directed plaintiff to provide my chambers with proof of service when made. (Id.) Plaintiff signed for the certified copy of my Order.
Plaintiff has not provided my chambers with proof of service on any defendant, and a review of the Court's docket sheet for this action discloses that there is no affidavit of service on file with the Clerk's Office. Further, the Marshal's Office has informed my chambers that plaintiff never submitted anything to them to effect service of process.
More than 120 days having passed from the filing of the complaint, and the Court having advised plaintiff of her obligations under Fed.R.Civ.P. 4(m), and there being no indication that plaintiff has had the complaint served on defendant, I recommend that the Court dismiss plaintiff's complaint without prejudice for failure to timely serve it pursuant to Fed.R.Civ.P. 4(m). See, e.g., Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002); Brown v. Rapisarda, 01 Civ. 1217, 2002 WL 1402339 at *1 (S. D.N.Y. July 1, 2002) (Peck, M.J.); Hill v. Odland, 00 Civ. 6125, 2002 WL 426188 at *1 (S.D.N.Y. Mar. 19, 2002) (Peck, M.J.); Sanchez v. Hudson Assoc., 01 Civ. 1647, 2001 WL 830581 at *1 (S.D. N.Y. July 12, 2001) (Peck, M.J.); Reyes v. North Shore-Long Island Jewish Health Sys., 00 Civ. 8968, 2001 WL 395166 at *1 (S.D.N.Y. Apr. 16, 2001) (Peck, M.J.); Reckler v. Copper Dev. Ass'n, Inc., 00 Civ. 7007, 2001 WL 123727 at *1 (S.D.N.Y. Feb. 14, 2001) (Peck, M.J.).*fn1
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ. P. 72, 6(a), 6(e).