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United States District Court, S.D. New York

June 20, 2005.

EARL TATE, Plaintiff,
TINO HERNANDEZ, Chairman of New York City Housing Authority, et al., Defendants.

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


To the Honorable Kimba M. Wood, United States District Judge:

Plaintiff's amended complaint in this action was filed as of February 9, 2005. (Dkt. No. 4.)

  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 May 10, 2005, I advised plaintiff that if the complaint was not properly served under Rule 4(m), that is, by June 9, 2005, I would recommend that the action be dismissed. (Dkt. No. 9.) I also directed plaintiff to provide my chambers with proof of service when made. (Id.) The regular and certified mail copies of that Order were returned by the Post Office as unforwardable and unclaimed.

  Plaintiff has not provided my chambers with proof of service on defendants, 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. The U.S. Marshal's Office has advised my chambers that they have not received any request from plaintiff to perform service.

  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 defendants, and plaintiff being represented by counsel, 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).


  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 Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. 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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