Opinion
00 Civ. 3311 (JSR)(AJP)
September 12, 2000
REPORT AND RECOMMENDATION
To the Honorable Jed S. Rakoff, United States District Judge:
Plaintiff, represented by counsel Salvador V. Delgado, filed a complaint for mandamus against the INS on May 1, 2000. At a conference before this Court on July 13, 2000, plaintiff's counsel informed the Court that while he had given the pleadings to a process server to serve on the U.S. Attorney's Office, such service apparently had not been made. The Court reminded plaintiff's counsel of the need to properly serve the INS pursuant to Rule 4(i) of the Federal Rules of Civil Procedure, and that counsel was required to inform my chambers when service was completed.
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. . . .
Plaintiff's counsel has have 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 still is no affidavit of service on file with the Clerk's Office. More than 120 days having passed from filing of the complaint, and plaintiff having been advised of his obligations under Fed.R.Civ.P. 4(m), and there being no indication that plaintiffs have had the complaint served on any defendant, I recommend that the Court dismiss plaintiffs' amended complaint without prejudice for failure to timely serve it pursuant to Fed.R.Civ.P. 4(m), for failure to comply with a Court Order, and for failure to prosecute. See also Sanchez v. Bushrod, 98 Civ. 3830, 1999 WL 1565180 at *1 (S.D.N Y Jan. 21, 1999) (Peck, M.J.); Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105 (S.D.N.Y. 1997) (Peck, M.J.) (and cases cited therein).
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 Jed S. Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. 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).