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PRESTON v. ACTING SUPERINTENDENT P. RICHARDS

United States District Court, S.D. New York


May 17, 2004.

FREDDERICK PRESTON, Plaintiff, -against- ACTING SUPERINTENDENT P. RICHARDS, W. PLIMLEY, S. GOORD, HANN, Defendants

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiff's pro se amended complaint in this action was filed and the summons issued as of January 9, 2004. (Dkt. Entry for 1/9/04.)

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 March 3, 2004, I advised plaintiff that if the amended complaint was not properly served under Rule 4(m), that is, by May 10, 2004, I would recommend that the action be dismissed. (Dkt. No. 10.) I also directed plaintiff to provide my chambers with proof of service when made. (Id.)

  Plaintiff has not provided my chambers with proof of service on 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. In addition, the Marshal's Office has advised that they have not received any papers from plaintiff for service on defendant.

  More than 120 days having passed from the filing of the amended complaint, and the Court having advised plaintiff of his 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); Williams v. Metro New York Developmental Disabilities Servs. Office, 03 Civ. 3533, 2003 WL 22940917 at *1 (S.D.N.Y. Dec. 15, 2003); Carr v. Cardebelo, 03 Civ. 3427, 2003 WL 22133745 at *1 (S.D.N.Y. Sept. 16, 2003) (Peck, M.J.), report & rec. adopted, 2003 WL 22389674 (S.D.N.Y. Oct. 20, 2003); Richardson v. Metroplus Health Plan, 03 Civ. 1367, 2003 WL 21518832 at *1 (S.D.N.Y. July 7, 2003) (Peck, M.J.); Mendolia v. General Media Communications, Inc., 02 Civ. 10081, 2003 WL 21033534 at *1 (S.D.N.Y. May 2, 2003) (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 Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. 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).


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