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
REPORT AND RECOMMENDATION
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).
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 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),
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