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
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
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
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).