United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE
above-captioned matter is an action brought pursuant to 42
U.S.C. §405(g) seeking judicial review of an adverse
decision of the Commissioner of the Social Security
Administration. (Rec. doc. 1). Plaintiff's application
for leave to file this matter in forma pauperis
(“IFP”) was granted by the Court on June 19,
2018. (Rec. doc. 3). On that same date, three summons were
issued by the Clerk's Office and were forwarded to
Plaintiff along with an instructional letter (“Pauper
Letter”) advising him that the U.S. Marshal was
available to effect service on his behalf under Rule 4(c)(3),
Fed. R. Civ. P., upon being furnished with the necessary
paperwork. (Rec. docs. 3, 4).
accordance with Local Rule 16.2, after over 90 days had
passed since this lawsuit was filed and a review of the
record revealed that no service returns or waivers of service
had been filed herein indicating that service had been
properly made on the named Defendant, Plaintiff was ordered
to show cause, in writing and on or before October 19, 2018,
as to why his lawsuit should not be dismissed for failure to
prosecute. (Rec. doc. 5). On October 9, 2018,
Plaintiff filed a document denominated “Cause” in
which he largely argued the merits of his lawsuit against the
Social Security Administration. (Rec. doc. 6). Given
Plaintiff's pro se status, on October 11, 2018,
the Court issued an order granting him until November 16,
2018 within which to have the Defendant properly served and
to have proof thereof filed in the record, again advising him
of the availability of the U.S. Marshal to accomplish that
task as was explained in the Pauper Letter that was provided
to him at the inception of the case. (Rec. doc. 7). A copy of
the Court's order of October 11, 2018 was mailed to
Plaintiff at his address of record and has not been returned
as undeliverable. Unfortunately, proof of service is still
absent from the record despite the fact that this lawsuit has
been pending for over five months.
4(m), Fed. R. Civ. P., provides that “[i]f 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 plaintiff shows good cause for the
failure, the court must extend the time for service for an
appropriate period.” The jurisprudence has come to
expect strict compliance with the service rules within the
90-day period prescribed by Rule 4(m) and its predecessor.
See, e.g., Lambert v. United States, 44 F.3d 296
(5th Cir. 1995); Peters v. United States,
9 F.3d 344 (5th Cir. 1993); McGinnis v.
Shalala, 2 F.3d 548 (5th Cir. 1993),
cert. denied, 510 U.S. 1191, 114 S.Ct. 1293 (1994);
Trania v. United States, 911 F.2d 1155
(5th Cir. 1990).
now been over five months since this lawsuit was filed and
proof of service on the named Defendant is lacking. By
scheduling the rule to show cause, the Court hoped to bring
this deficiency to the attention of Plaintiff and to impress
upon him the need to prosecute his case. Despite
Plaintiff's largely unresponsive filing in response to
the rule to show cause, the Court granted him an additional
36 days within which to have the Defendant served and to have
proof of service filed in the record. Unfortunately, as far
as the record reflects, no further efforts with respect to
service have been taken. As Plaintiff is proceeding pro
se in this matter, these failures are attributable to
him alone. Accordingly, it will be recommended that
Plaintiffs suit be dismissed without prejudice pursuant to
Rule 4(m) of the Federal Rules of Civil Procedure.
foregoing reasons, it is recommended that Plaintiffs suit be
dismissed without prejudice pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure.
party's failure to file written objections to the
proposed findings, conclusions, and recommendation contained
in a magistrate judge's report and recommendation within
14 days after being served with a copy shall bar that party,
except upon grounds of plain error, from attacking on appeal
the unobjected-to proposed factual findings and legal
conclusions accepted by the district court, provided that the
party has been served with notice that such consequences will
result from a failure to object. Douglass v. United
States Auto. Assoc, 79 F.3d 1415 (5th Cir.
 Effective December 1, 2015, the
presumptive period of time within which to serve a defendant
was reduced from 120 days to 90 days. Rule 4(m), Fed. R. Civ.
Douglass referenced the
previously-applicable 10-day period for the filing of
objections. Effective December 1, 2009, 28 U.S.C.
§636(b)(1) was amended to ...