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Southern University System Foundation v. Henderson

United States District Court, M.D. Louisiana

June 5, 2015

SOUTHERN UNIVERSITY SYSTEM FOUNDATION
v.
ANDRE HENDERSON, ET AL

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RICHARD L. BOURGEOIS, Jr., Magistrate Judge.

This matter is before the court sua sponte regarding Defendant's failure to serve third-party defendants within the time limitations provided by Rule 4(m) of the Federal Rules of Civil Procedure and failure to prosecute his claims against other third party defendants.

This matter was removed from the Nineteenth Judicial District Court to this court on May 9, 2014. On September 18, 2014, defendant Gary Shelton filed an answer and third party complaint against AT&T, Delta Airlines, Cover Girl, Shell Oil, Pontiac, L'eggs, Coors, Tampax, DaimlerChrysler, Coca-Cola, Bellsouth, and American Airlines. (R. Doc. 6).

In reviewing the record, it appears that summonses were issued on BellSouth / AT&T Southeast Delta Airlines, Cover Girl, L'eggs, and Coca-Cola on October 14, 2014. (R. Doc. 16). On November 15, 2014, executed returns on BellSouth / AT&T Southeast and Coca-Cola were filed by counsel for Gary Shelton. (R. Doc. 17 Recommendation, there have been no responsive pleadings filed by third party defendants BellSouth, AT&T and Coca-Cola. In addition, there have been no returns of service on third party defendants Delta Airlines, Cover Girl, and L'eggs.

On March 2, 2015, the court issued an order requiring defendant Gary Shelton to show cause, in writing, why his claims asserted against third party defendants Delta Airlines, Cover Girl, and L'eggs should not be dismissed under Local Rule 41(b)(1)(A) (former Local Rule 41.2.A) for failure to prosecute where no service has been made within 120 days after filing of the complaint. (R. Doc. 80).[1] The order warned defendant Gary Shelton that failure to show cause in compliance with the order may result in his third party complaint being dismissed as to third party defendants Delta Airlines, Cover Girl and L'eggs. As of the date of this Report and Recommendation, defendant Gary Shelton has failed to show cause, in writing, why his third party complaint as to third party defendants Delta Airlines, Cover Girl and L'eggs should not be dismissed.

The March 2, 2015, order also required defendant Gary Shelton to show cause, in writing, why his claims against third party defendants BellSouth, AT&T and Coca-Cola should not be dismissed under Local Rule 41(b)(1)(B) (former Local Rule 41.2.B) for failure to prosecute in light of his failure to move for entry of default within 60 days after service of the summons and complaint. The order directed defendant Gary Shelton to file a "Motion for Extension of Time to Take a Default" no later than March 25, 2015, should there be good cause for his failure to seek entry of default. As of the date of this Report and Recommendation, defendant Gary Shelton has not filed moved for an extension of time to take default or otherwise showed cause, in writing why, his claims against BellSouth, AT&T, and Coca-Cola should not be dismissed.

The court warned defendant Gary Shelton that failure to comply with the March 2, 2015, order may result in his third party complaint being dismissed as to third party defendants Delta Airlines, Cover Girl, L'eggs, BellSouth, AT&T, and Coca-Cola with or without further notice.

RECOMMENDATION

It is the recommendation of the magistrate judge that defendant Gary Shelton's third-party claims asserted against third party defendants Delta Airlines, Cover Girl, and L'eggs should be dismissed, without prejudice, under Local Rule 41(b)(1)(A) for failure to prosecute where no service has been made within 120 days after filing of the complaint.

It is the further recommendation of the magistrate judge that defendant Gary Shelton's third-party claims asserted against third party defendants BellSouth, AT&T, and Coca-Cola should be dismissed, without prejudice, under Local Rule 41(b)(1)(B) for failure to prosecute in light of his failure to move for entry of default within 60 days after service of the summons and complaint.


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