United States District Court, S.D. New York
January 19, 2005.
WANDA JAIMAN, Plaintiff,
A. PORCEL TRADING CO., Defendants.
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Richard J. Holwell, United States District Judge:
Plaintiff's pro se complaint in this action was filed as of August 27,
2004. (Dkt. No. 1.)
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 September 30, 2004, I advised plaintiff that if the
complaint was not properly served under Rule 4(m), that is, by December
27, 2004, I would recommend that the action be dismissed. (Dkt. No. 3.) 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 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).
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 Richard J. Holwell, 500 Pearl Street, Room 1950, and to my
chambers, 500 Pearl Street, Room 1370. Any requests for an extension of
time for filing objections must be directed to Judge Holwell. 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).