United States District Court, S.D. New York
October 7, 2005.
ANGELA BOUWSMA, Plaintiff,
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
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).
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).
© 1992-2005 VersusLaw Inc.