UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DENISE MATHEWS, 

 

 Plaintiff, Civil Action No. 14-14847 

 Honorable Robert H. Cleland 

 Magistrate Judge David R. Grand 

v. 

 

COMMISSIONER OF 

SOCIAL SECURITY, 

 

 Defendant. 

__________________________________/ 

REPORT AND RECOMMENDATION TO DISMISS 

PLAINTIFF’S COMPLAINT FOR FAILURE TO SERVE 

Plaintiff Denise Mathews brings this action pursuant to 42 U.S.C. §405(g), seeking 

judicial review of a final decision of the Commissioner of the Social Security Administration 

(“Commissioner”) denying her claim for benefits. Summonses were issued originally on January 

13, 2015. (Doc. #6). No proof of service was filed on the docket within the 120 days allowed 

for service of the summons and complaint pursuant to Fed. R. Civ. P. 4.1

On May 19, 2015, this Court issued an Order requiring Mathews to show cause why this 

action should not be dismissed for failure to serve. (Doc. #7). A response was due on May 29, 

2015. (Id.). To date, no response to that order has been filed. 

A court may dismiss an action under Fed. R. Civ. P. 41(b) when a plaintiff fails to 

prosecute, comply with the Federal Rules, or comply with a court order. In deciding whether to 

 

1

 Under Fed. R. Civ. P. 4(i), service on an agency or employee of an agency, such as the 

Commissioner of Social Security, sued in his or her official capacity, is effected by sending 

copies of the summonses and complaints by certified or registered mail to the agency or 

employee, to the United States Attorney for the district where the action is brought, and to the 

Attorney General of the United States in Washington, D.C. Under Fed. R. Civ. P. 4(m), service 

of a summons and complaint must be made upon a defendant within 120 days after filing the 

complaint. 

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dismiss an action for these reasons, a court should consider (1) whether the party’s failure is due 

to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the delinquent 

party’s conduct; (3) whether the delinquent party was warned that failure to cooperate could lead 

to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal 

was ordered. See Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001). Moreover 

under Rule 4(m), “[i]f a defendant is not served within 120 days after the complaint is filed, the 

court . . . must dismiss the action without prejudice against that defendant or order that service be 

made within a specified time.” 

Applying these principles to the instant case, the Court finds that three of the four factors 

weigh in favor of dismissal.2

 First, despite the Court’s putting Mathews on notice of her failure 

to serve, she has failed to respond to the Court’s order to show cause, or to otherwise take steps 

to accomplish service. While the Court does not presume this is the result of bad faith or 

willfulness, Mathews, who is represented by counsel in this action, is clearly at fault for failing 

to serve or comply with the Court’s order. 

The third and fourth factors weigh in favor of dismissal in light of the Court’s Order to 

Show Cause; Mathews simply failed to respond to that Order, which was issued weeks ago, and 

which specifically warned her that failure to comply with its terms could lead to dismissal of this 

action without prejudice under Rule 41(b). (Doc. #7). Thus, Mathews has been on notice of her 

failure to timely serve the Commissioner for weeks, and has taken no steps to remedy this 

deficiency. 

Having considered the relevant factors, the Court finds it appropriate to dismiss this 

action pursuant to Rules 4(m) and 41(b) due to Mathews’ failure to serve the Commissioner 

 

2

 The Court can find no prejudice to the Commissioner by virtue of Mathews’ failure to serve, 

and, thus, the second factor is not satisfied here. 

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within 120 days of filing her complaint, as well as her failure to comply with the Court’s Order 

to Show Cause. Under Rule 4(m), such a dismissal should be without prejudice. Accordingly, 

the Court RECOMMENDS dismissing Mathews’ complaint WITHOUT PREJUDICE. 

Dated: June 3, 2015 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

REVIEW

Either party to this action may object to and seek review of this Report and 

Recommendation, but must act within fourteen days of service of a copy hereof as provided for 

in 28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific objections 

constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); 

Howard v. Sec’y of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 

(6th Cir. 1981). Filing objections which raise some issues but fail to raise others with specificity 

will not preserve all objections that party might have to this Report and Recommendation. See 

Willis v. Sec’y of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection must be served upon 

this Magistrate Judge. See E.D. Mich. L.R. 72.1(d)(2). 

Note these additional requirements at the direction of Judge Cleland: 

Each objection must be labeled as “Objection #1,” “Objection #2,” etc., and must 

specify precisely the provision of this Report and Recommendation to which it pertains. Not 

later than fourteen days after service of objections, the non-objecting party must file a 

response to the objections, specifically addressing each issue raised in the objections in the same 

order and labeled as “Response to Objection #1,” “Response to Objection #2,” etc. The response 

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must be concise and proportionate in length and complexity to the objections, but there is 

otherwise no page limitation. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on June 3, 2015. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager

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