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Barnes v. Bechtel Oil Gas & Chemicals

United States District Court, M.D. Louisiana

July 9, 2019

WAYNE ANDRE' BARNES
v.
BECHTEL OIL GAS & CHEMICALS

          NOTICE

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

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

         In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations 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 of the Magistrate Judge which have been 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

         This matter is before the Court sua sponte regarding Plaintiff's failure to properly serve defendant Bechtel Oil Gas & Chemicals. Plaintiff initiated this Title VII action on August 23, 2018, naming as defendant Bechtel Oil Gas & Chemicals. (R. Doc. 1). In addition, Plaintiff filed a motion for appointment of counsel and to proceed in forma pauperis. (R. Doc. 2). On September 25, 2018, the Court denied the motion for appointment of counsel but granted the motion to proceed in forma pauperis. (R. Doc. 3). In the Court's order (R. Doc. 3), the Court informed Plaintiff that “Plaintiff is responsible for submitting the summons with the address of the defendant(s). Upon plaintiff submitting the summons with the address for the defendant(s), the Clerk is directed to issue process to the defendant(s). The United States Marshals Service shall serve the summons and complaint on the defendant(s) wherever found. Plaintiff(s) will be required to provide to the United States Marshal a completed U.S. Marshal Form 285 for each defendant to be served. The United States Marshal will not serve the defendant without a properly completed form.”

         The Court set a scheduling conference for December 6, 2018 at 1:30 p.m. On December 4, 2018, the Court reset the scheduling conference for January 31, 2019 at 2:00 p.m., as there had been no summons ever issued and no responsive pleadings filed by the defendant, Bechtel Oil Gas & Chemicals. (R. Doc. 5). The Court reminded Plaintiff that he is “responsible for submitting the summons with the address of the defendant(s).” In addition, the Court again informed the Plaintiff that he was required to submit the summons with the proper address for the defendant(s), along with certain required paperwork for the U.S. Marshal Service. He was reminded that “[t]he United States Marshal will not serve the defendant without a properly completed form.”

         On December 7, 2018, Plaintiff filed a motion to extend the time to file joint scheduling conference. (R. Doc. 6). On December 18, 2018, the Court granted the motion and reset the scheduling conference for February 14, 2019 at 10:30 a.m. and a Joint Status Report due January 31, 2019. (R. Doc. 7). However, the Court noted that summons was never issued to the defendant Bechtel Oil Gas & Chemicals. The Court ordered Plaintiff to “submit the summons and address for the defendant(s) by January 24, 2019. Failure by Plaintiff to submit the summons and address for the defendant(s) will result in a show cause order issued to Plaintiff.”

         On February 6, 2019, the Court issued an order (R. Doc. 9) cancelling the February 14, 2019 scheduling conference and ordering Plaintiff to show cause, in writing, why his claims asserted against Bechtel Oil Gas & Chemicals should not be dismissed because of his failure to submit the summons and address for the defendant and to serve the defendant within the time allowed by Fed.R.Civ.P. Rule 4(m). Plaintiff was advised that a failure to file a written response to the Court's order within the time allowed may result in the dismissal of his claims against the defendant without further notice from the Court.

         On February 26, 2019, Plaintiff submitted a written response to the Court's show cause order. In addition, Plaintiff submitted USM 285 forms which were sent to the U.S. Marshal. On March 12, 2019, Plaintiff submitted the summons and address for Shawn Perez and Chris Anderson (R. Doc. 11). These individuals are not named defendants. The Clerk still issued the summons as requested, but they have been returned unexecuted by the U.S. Marshal (R. Doc. 13), indicating that both individuals to be served, Shawn Perez and Chris Anderson, were no longer employed at the service addresses on March 26, 2019. The unexecuted summons both indicated that they had not been employed there for over a year.

         A review of the record shows that since the summons were returned unexecuted, plaintiff has made no attempt to re-serve these individuals or name them in his lawsuit, despite being notified that the addresses he provided are not valid. Plaintiff has still failed to request any summons for defendant Bechtel Oil Gas & Chemicals or show cause why those claims should not be dismissed for failure to serve.

         Pursuant to the requirements of Rule 4(m) of the Federal Rules of Civil Procedure, failure to serve a defendant within 90 days of commencement of an action is cause for dismissal of that defendant from the proceeding. Although a pro se plaintiff may rely on service by the U.S. Marshal, he may not remain silent and do nothing to effectuate such service, and should attempt to remedy any defects of which he has knowledge. The plaintiff has repeatedly failed to follow the instructions of the Court and has failed to take any action to direct service on the named defendant. It is therefore appropriate that this matter be dismissed, without prejudice, for failure of the plaintiff to effect timely service.

         RECOMMENDATION

         It is the recommendation of the magistrate judge that the plaintiff's claims against defendant Bechtel Oil Gas & Chemicals be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and Local ...


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