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BOUWSMA v. GOLD

United States District Court, S.D. New York


October 7, 2005.

ANGELA BOUWSMA, Plaintiff,
v.
DAVID J. GOLD, P.C., ET AL., Defendants.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE

On April 20, 2005, Angela Bouwsma ("Bouwsma") commenced this action pro se, pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. Bouwsma failed to serve a copy of the summons and complaint upon the defendants within 120 days of that date. In an order dated August 26, 2005 ("August 26 Order"), the Court directed that Bouwsma effect service of the summons and complaint upon the defendants and file proof of that service on or before September 26, 2005. The August 26 Order advised that "[i]f the defendants are not served with the summons and complaint on or before that date, and if the plaintiff fails to show cause, in writing, why service has not been effected, a report and recommendation will be made to the assigned United States district judge that the complaint be dismissed, for failure to prosecute, pursuant to Rules 4 and 41 of the Federal Rules of Civil Procedure." A review of the docket sheet maintained for this action by the Clerk of Court indicates that Bouwsma has not filed any proof of service. Rule 41(b) of the Federal Rules of Civil Procedure authorizes a district court to dismiss a plaintiff's action for failure to prosecute the action or for failure to comply with an order of the court. See LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001). Rule 4(m) of the Federal Rules of Civil Procedure provides, in pertinent part, that:

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.
  Bouwsma did not effect service within the original 120-day period provided by Rule 4(m), or within the additional period of time provided by the August 26 Order. Moreover, she has not submitted anything to the Court in an attempt to show good cause for her failure to comply with the above-noted order. Accordingly, this action should be dismissed, pursuant to Rules 4(m) and 41(b).

  RECOMMENDATION

  For the reasons set forth above, I recommend that the instant action be dismissed.

  FILING 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 Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 1250, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 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).

20051007

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