Opinion
C/A No. 0:20-1099-SAL-PJG
03-09-2021
David D. Wines, Plaintiff, v. LPL Financial, Defendant.
REPORT AND RECOMMENDATION
Plaintiff David D. Wines, proceeding pro se, filed this employment discrimination case in forma pauperis pursuant to 28 U.S.C. § 1915 against LPL Financial and Carowinds. This matter is currently before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.).
As Plaintiff was granted leave to proceed in forma pauperis (ECF No. 11), the court issued an order on May 6, 2020 authorizing issuance and service of process by the Clerk of Court and directing the United States Marshals Service to serve the Summons and Complaint on LPL Financial and Carowinds. (ECF No. 22); see Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d). The court's order stated that "[i]f the information provided by Plaintiff . . . is not sufficient for the Marshal to effect service of process, . . . the Marshal should so note in the 'Remarks' section at the bottom of the Form USM-285." (ECF No. 22 at 2.) The plaintiff was also specifically advised that "[p]laintiff must provide, and is responsible for, information sufficient to identify the defendant," that "[t]he United States Marshal cannot serve an inadequately identified defendant," and that "[u]nserved defendants may be dismissed as parties to this case." (Id.)
The United States Marshals returned the Forms USM-285 for each defendant, indicating that they served the defendants as directed on the Forms USM-285. (ECF Nos. 31 & 32.) The Forms USM-285 for both defendants indicated that the summonses were mailed by certified mail to the addresses provided by Plaintiff and returned signed. Counsel for Defendant Carowinds appeared and Plaintiff stipulated to Carowinds's dismissal on July 15, 2020. (ECF No. 37.) However, LPL Financial did not appear.
The summons for LPL Financial was returned "executed" by the United States Marshals, but the returned Form USM-285 shows only that the Marshals mailed the summons to the address provided by Plaintiff and that the mail was signed for at delivery. Plaintiff had not put forth any evidence that LPL Financial was properly served, and Plaintiff did not move for a default judgment.
Consequently, by order dated December 22, 2020, the court directed Plaintiff to complete and return a Form USM-285 for Defendant LPL Financial's registered agent in compliance with Federal Rule of Civil Procedure 4(h) (generally, requiring service on corporations, partnerships, and associations be made in-person or by delivering a copy of the summons and complaint on an agent authorized by appointment or law to receive service of process). (ECF No. 44.) Plaintiff responded by filing copies of the Form USM-285 for LPL Financial that was already returned by the United States Marshals. (ECF No. 47.) Plaintiff then filed another Form USM-285 that included three addresses for LPL Financial on one form. (ECF No. 54.)
On February 9, 2021, the court issued an order explaining why the Forms UMS-285 submitted by Plaintiff were deficient. (ECF No. 57.) The court also warned Plaintiff that his time for service under Federal Rule of Civil Procedure 4(m) had expired and that he must show good cause to extend the deadline for service. Plaintiff subsequently filed another Form USM-285 for LPL Financial that again has the same address at which the United States Marshals previously attempted service on LPL Financial. Plaintiff still has not provided any proof that LPL Financial was properly served pursuant to Rule 4(h) as the court explained in the December 22 order. Also, Plaintiff has not moved to extend his time for service as required by the court's February 9 order, nor has he provided any basis for the court to find that he has shown good cause to excuse his failure to serve LPL Financial.
Pursuant to Federal Rule of Civil Procedure 4, service of process generally must be effected on a defendant within ninety days of filing the Complaint. See Fed. R. Civ. P. 4(m) ("If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period."). In this case, over ninety days has passed since the filing of the Complaint and the issuance of the order directing service of process. See Robinson v. Clipse, 602 F.3d 605, 608-09 (4th Cir. 2010) (tolling the time period for service during initial review). After review of the returned summons, the court concludes that the investigative efforts of the United States Marshals Service were reasonable—the summons was mailed to the address provided by Plaintiff. See Greene v. Holloway, No. 99-7380, 2000 WL 296314, at *1 (4th Cir. 2000) (citing with approval Graham v. Satkoski, 51 F.3d 710 (7th Cir. 1995)); see also Shirley v. Staubs, 812 F. App'x 162 (4th Cir. 2020) (providing that, before dismissing for failure to serve, the district court should make findings regarding whether the plaintiff established good cause for their failure to serve and whether the Marshals could have served the defendant "with reasonable effort"). Also, the court provided Plaintiff multiple opportunities to file a new Form USM-285 for LPL Financial that would comply with Rule 4(h) of the Federal Rules of Civil Procedure, but Plaintiff failed to file new a Form USM-285 that is different than the Form USM-285 previously served. Accordingly, the court recommends that this matter be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m) because Plaintiff provides no indication that he served the only remaining defendant. March 9, 2021
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).