Opinion
00 Civ. 7007 (SHS)(AJP)
February 14, 2001
REPORT AND RECOMMENDATION
To the Honorable Sidney H. Stein, United States District Judge:
Plaintiff's complaint in this action was filed as of September 19, 2000. Plaintiff paid the filing fee and did not seek in forma pauperis status.
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 letter dated October 12, 2000, I advised plaintiff that if the complaint was not properly served under Rule 4(m), that is, by January 17, 2001, I would recommend that the action be dismissed. I also directed plaintiff to provide my chambers with proof of service when made.
Plaintiff has 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 her obligations under Fed.R.Civ.P. 4(m), and there being no indication that plaintiff has had the complaint served on any defendant, I recommend that the Court dismiss plaintiff's 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, e.g., Reyes v. McElroy, 00 Civ. 3311, 2000 WL 1280996 at *1 (S.D.N.Y. Sept. 12, 2000) (Peck, M.J.); 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 Sidney H. Stein, 500 Pearl Street, Room 1010, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Stein. 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).