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Antoine v. National Liability and Fire Insurance Co.

United States District Court, M.D. Louisiana

January 3, 2018

ROBERT ANTOINE
v.
NATIONAL LIABILITY and FIRE INSURANCE COMPANY, ET AL.

          NOTICE

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Plaintiff filed a Petition for Damages on August 22, 2016.[1] The case was removed to this court on June 28, 2017.[2] A review of the docket shows no service information as to defendant, Larry Meeks (“Meeks”), [3] no responsive pleading has been filed on behalf Meeks, nor has Plaintiff sought to obtain an entry of default as to Meeks. The court entered a Notice and Order August 22, 2017 continuing the scheduling conference in this matter due to lack of service information and appearance regarding Meeks.[4] The court then entered a Notice to Counsel September 26, 2017 continuing, again, the scheduling conference in this matter due to lack of service information and appearance regarding Meeks.[5] After Plaintiff still failed to take action, the court issued an Order to Show Cause why Plaintiff's claims against Meeks should not be dismissed pursuant to Local Civil Rule 41(b)(1)(A).[6] The Order to Show Cause set a hearing for November 14, 2017. Alternatively, the Order to Show Cause permitted the plaintiff to file a response by November 7, 2017.

         On October 31, 2017 the plaintiff submitted summons to the court and the court issued summons to counsel on behalf of Meeks. Plaintiff responded to the Order to Show Cause detailing attempts to serve Meeks.[7] Counsel for Plaintiff also appeared at the show cause hearing November 14, 2017. During the hearing, the court granted Plaintiff's oral motion to extend the time period for service for Meeks and required that service information be filed into the record within thirty (30) days.[8] The Hearing Report and Order further provides as follows, “Failure to comply with this Order may result in a recommendation of dismissal of Plaintiff's claims against defendant, Larry Meeks, without further notice.[9] Plaintiff failed to comply with this Order and, to date, no information has been filed into the record showing that Larry Meeks has been served with process in this matter.

         Local Civil Rule 41(b)(1)(A) provides for dismissal for lack of prosecution where no service of process has been made within 120 days after filing of the complaint. As set forth above, there is no information in the record of this matter to indicate that Meeks was served and more than 120 days have passed since the case was removed to this court on June 28, 2017 (the Petition for Damages was actually filed in state court on August 22, 2016).[10]

         Accordingly, the undersigned RECOMMENDS dismissal of Plaintiff's claims against defendant Larry Meeks without prejudice pursuant to Local Civil Rule 41(b)(A). Further the undersigned RECOMMENDS that if this Report and Recommendation is adopted and an Order of Dismissal is entered, such order allow for reinstatement of the action against defendant Larry Meeks within thirty days for good cause shown.

---------

Notes:

[1] R. Doc. 1-2, p. 4.

[2] R. Doc. 1.

[3] The Petition for Damages requested that service be held with regard to Meeks. R. Doc. 1-2, ...


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