United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
MICHAEL B. NORTH, UNITED STATES MAGISTRATE JUDGE.
above-captioned matter is an employment discrimination action
brought pursuant to 42 U.S.C. §2000e and pendant state
law by pro se Plaintiff, Shawana Harris, against
Defendants, Complete Logistical Services, LLC and Spencer
Sens. (Rec. doc. 1). Plaintiff's application for leave to
file this matter in forma pauperis
(“IFP”) was granted by the Court on February 13,
2019. (Rec. doc. 5). Upon the processing of that by the
Clerk's Office, two summonses were issued and were
forwarded to Plaintiff along with an instructional letter
(“Pauper Letter”) advising her that the U.S.
Marshal was available to effect service on her behalf under
Rule 4(c)(3), Fed. R. Civ. P., upon being furnished the
necessary paperwork. (Rec. docs. 6, 5-1).
accordance with Local Rule 16.2 and in furtherance of Rule
4(m), Fed. R. Civ. P., 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 Defendants, Plaintiff was ordered to show cause, in
writing and on or before July 31, 2019, as to why her lawsuit
should not be dismissed for failure to prosecute. (Rec. doc.
7). Unfortunately, no response to the Court's “show
cause” order has been forthcoming from Plaintiff and,
as far as the record reflects, no service efforts have been
taken in this case.
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). In addition, Rule 41(b) of the
Federal Rules of Civil Procedure provides that a court may,
in its discretion, dismiss an action based on the failure of
the plaintiff to prosecute her case or to comply with a court
order. Hulsey v. State of Texas, 929 F.2d 168, 171
(5th Cir. 1991).
now been nearly six months since this lawsuit was filed and
proof of service on the named Defendants 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 her the need to prosecute this case. Unfortunately,
there has been no response to the Court's show cause
order and, as far as the record reflects, no efforts with
respect to service have been taken. As Plaintiff is
unrepresented by counsel, these failures are attributable to
her alone. Accordingly, it will be recommended that
Plaintiff's suit be dismissed without prejudice pursuant
to Rules 4(m) and 41(b) of the Federal Rules of Civil
foregoing reasons, it is recommended that Plaintiffs suit be
dismissed without prejudice pursuant to Rules 4(m) and 41(b)
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.
Douglass referenced the previously-applicable 10-day
period for the filing of objections. Effective December 1,
2009, 28 U.S.C. Â§636(b)(1) was amended to extend ...