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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JAKE TAYLER JACOBS, § 

 § 

Plaintiff, § 

§ 

v. § No. 3:22-cv-00302-M-BT 

§ 

BMW FINANCIAL SERVICES, § 

EQUIFAX, and EXPERIAN, §

 § 

Defendants. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is pro se Plaintiff Jake Tayler Jacobs’s civil action against 

Defendants BMW Financial Services (BMW), Equifax, and Experian, Inc. For the 

reasons stated, the Court should DISMISS without prejudice all of Jacobs’s claims 

against Equifax and Experian because Jacobs failed to obey court orders and 

prosecute his claims against these defendants. The Court also should GRANT

BMW’s Motion to Dismiss (ECF No. 13) and DISMISS with prejudice Jacobs’s 

claims against BMW because those claims are barred by limitations. 

Background

In his complaint, Jacobs alleges that, “back in 2016,” a delinquent account 

with BMW Financial Services “was discharged and cancelled.” Compl. 1. (ECF No. 

3). He further states that, “in 2016” or “early 2017,” BMW issued him a 1099-C 

reflecting the alleged discharge. Id. 1, 2. But, “in early 2019,” Jacobs “noticed the 

credit bureaus, including Equifax and Experian, were negatively reporting [the 

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account] with a balance of $34,434 and $28,951.” Id. Jacobs “disputed this 

erroneous information with the credit bureaus,” and BMW allegedly received 

notice that Jacobs disputed the negative reports. Id. Despite Jacobs’s efforts,

Defendants allegedly have continued reporting negatively on the accounts. Id. 

On February 8, 2022, Jacobs sued BMW, Equifax, and Experian for 

violations of the Fair Credit Reporting Act (FCRA). Compl. 1 (ECF No. 3); See 15 

U.S.C. 1681. On March 1, the Court ordered Jacobs “to serve his complaint on 

Defendants and file proof of service with the Court by May 9, 2022.” Order 2. (ECF 

No. 6). The Court further informed Jacobs that his failure to do so could result in 

dismissal of his complaint. Id. Although Jacobs requested a summons for BMW, 

he has not filed any proofs of service as to any Defendant. 

Nonetheless, on April 27, BMW filed a Motion to Stay and Compel 

Arbitration (ECF No. 12), a Motion to Dismiss (ECF No. 13) arguing Jacobs’s

claims are barred by the statute of limitations, and an Answer (ECF No. 13). On 

November 14 and November 22, Jacobs filed tardy, duplicate responses to BMW’s 

Motion to Stay and Compel Arbitration. (See ECF Nos. 16, 17). Jacobs did not 

respond to BMW’s Motion to Dismiss.

Legal Standard and Analysis

A. The Court should dismiss Jacobs’s claims against Equifax and Experian 

without prejudice for failure to prosecute and failure to obey court orders. 

Rule 4 provides that “[t]he plaintiff is responsible for having the summons 

and complaint served within the time allowed by Rule 4(m) and must furnish the 

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necessary copies to the person who makes service.” Fed. R. Civ. P. 4(c)(1). After 

effecting service, the plaintiff must file proof of service with the Court. Fed. R. Civ. 

P. 4(l). If the plaintiff fails to serve a defendant “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,” unless the plaintiff 

shows both (1) good cause for his failure to timely and properly effect service and 

(2) good cause for the court to extend the time for service for an appropriate period. 

Fed. R. Civ. P. 4(m); Lewis v. Sec’y of Pub. Safety & Corr., 870 F.3d 365, 369 (5th 

Cir. 2017) (“Rule 4(m) requires dismissal if a defendant is not served within 90 

days after the complaint is filed, unless the plaintiff shows good cause for the 

failure.”); see also Fed. R. Civ. P. 41(b) (providing for dismissal, with or without 

prejudice, for failure to prosecute and obey court orders). 

“A pro se plaintiff is entitled to notice before a district court dismisses an 

action, sua sponte, for failure to timely serve the defendants under Rule 4(m).” 

Drgac v. Treon, 2008 WL 4746984, at *1 (S.D. Tex. Oct. 27, 2008) (citing Lindsey 

v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996)). But “[a] plaintiff’s pro se

status and ignorance of the law do not constitute cause for his failure to effect 

service in compliance with the rules.” Id. at *1 (citing Kersh v. Derozier, 851 F.2d 

1509, 1512 (5th Cir. 1988)).

Under Federal Rule of Civil Procedure 41(b), a trial court has discretionary 

authority to dismiss an action sua sponte for a plaintiff’s failure to prosecute or 

comply with any order of the court. Link v. Wabash R.R., 370 U.S. 626, 629-30 

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(1962); Gates v. Strain, 885 F.3d 874, 883 (5th Cir. 2018) (citations omitted). 

“This authority [under Rule 41(b)] flows from the court’s inherent power to control 

its docket and prevent undue delays in the disposition of pending cases.” Boudwin 

v. Graystone Ins., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link, 370 U.S. 626 at 

630-31). 

Here, Jacobs, proceeding pro se, paid the statutory filing fee; therefore, he 

is responsible for properly serving all the Defendants with a summons and 

complaint as required by Federal Rule of Civil Procedure 4. The Clerk’s Office 

provided Jacobs with a Notice and Instruction to Pro Se Party on February 8 (ECF 

No. 2), which advised Jacobs to read and follow the Federal Rules of Civil 

Procedure and that service must be made on the Defendants. See Notice and Instrs. 

to Pro Se Party 1, ¶ 3, 5-6. The Court also reminded Jacobs of the service

requirement in its March 1 order. (ECF No. 6). The Court specifically advised 

Jacobs that failure to properly serve the Defendants within 90 days of filing his 

complaint may result in dismissal. Order 1. And, the Court ordered Jacobs to 

properly serve the Defendants by May 9, 2022. Id.

It has been 297 days since Jacobs filed his complaint. To date, Jacobs has 

not filed any proofs of service, nor did Jacobs request a summons for Experian or 

Equifax. Jacobs has not provided any explanation for why service has not been 

made. Therefore, Jacobs has not demonstrated good cause. Jacobs also failed to 

comply with the Court’s order to serve his complaint on Defendants and file proof 

of service with the Court. 

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BMW, however, appeared in this case and filed responsive pleadings. BMW 

did not assert that service was improper in any of its pleadings—therefore it waived

any defense based on improper service. See Fed. R. Civ. Pr. 12(h). (“A party waives 

any defense listed in Rule 12(b)(2)-(5) by omitting it from a motion in the 

circumstances described in Rule 12(g)(2); or failing to either (i) make it by motion 

under this rule; or (ii) include it in a responsive pleading or in an amendment 

allowed by Rule 15(a)(1) as a matter of course.”)

As for Experian and Equifax, they have not appeared in this case nor filed 

anything. Accordingly, the Court should dismiss without prejudice Jacobs’s claims 

against Experian and Equifax, under Rule 4(m) for failure to effect proper service, 

and under Rule 41(b), for failure to comply with a court order and to prosecute this 

lawsuit. 

B. The Court should dismiss with prejudice Jacobs’s claims against BMW 

because they are time-barred. 

When deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, 

the court “accepts all well-pleaded facts as true, viewing them in the light most 

favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 

(5th Cir. 2007) (internal quotation marks omitted). However, when deciding a 

Rule 12(b)(6) motion, a court may not look beyond the pleadings. Spivey v. 

Robertson, 197 F.3d 772, 774 (5th Cir. 1999). To survive a Rule 12(b)(6) motion, 

therefore, a plaintiff’s complaint must contain sufficient factual matter to state a 

claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 

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544, 570 (2007). “To be plausible, the complaint’s ‘[f]actual allegations must be 

enough to raise a right to relief above the speculative level.’” In re Great Lakes 

Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir. 2010) (quoting Twombly, 550 U.S. 

at 555). 

This pleading standard does not require “‘detailed factual allegations,’” but 

it does demand more than an unadorned accusation devoid of factual support. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). 

“A claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw a reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “[A] formulaic 

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 

555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “While legal conclusions 

can provide the framework of a complaint, they must be supported by factual 

allegations.” Iqbal, 556 U.S. at 679. Where the facts do not permit the court to infer 

more than the mere possibility of misconduct, the complaint has stopped short of 

showing that the plaintiff is plausibly entitled to relief. Id. at 678 (citing Twombly, 

550 U.S. at 557).

The statute of limitations may be proper grounds for a Rule 12(b)(6) 

dismissal if it is evident from a plaintiff’s complaint that the action is time-barred. 

Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2006). Under the FCRA, the 

plaintiff must initiate suit either (1) two years after the date the plaintiff discovers 

facts that form the basis for such liability, or (2) five years after the date on which 

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the violation that is the basis for such liability occurs, whichever is earlier. 15 U.S.C. 

§ 1681(p). 

Here, Jacobs admits in his complaint that—“in early 2019”—he noticed the 

inaccurate report, filed his dispute, and made sure BMW was aware of the dispute. 

Compl. 2. Therefore, the two-year statute of limitations on Jacobs’s FCRA claims 

began to run in 2019.1 Unless there are grounds for tolling, then, the limitations 

period expired in 2021. However, Jacobs waited until February 8, 2022, to file this 

lawsuit. 

Jacobs has not provided any arguments in favor of tolling the statute of 

limitations. The fact Jacobs disputed the report with the credit bureaus does not 

toll statute of limitations for filing a cause of action with the courts. Schmidt v. 

Caliber Home Loans, Inc., 2022 WL 992742 (N.D. Tex. Mar. 31, 2022) (Brown, J.) 

(“Plaintiff states that he has disputed the debt multiple times within the two years 

prior to filing suit, but this is irrelevant as the limitations period begins to run once 

the plaintiff discovers the facts that give rise to a claim, not when the most recent 

report of a violation is made.”) (citations omitted.) Therefore, Jacobs’s claims are 

barred by limitations, and the Court should grant BMW’s Motion to Dismiss. 

1 Jacobs also states in different places in his complaint that he received notice of 

the alleged discharge in the form of a 1099-C from BMW “in 2016” and “in early 

2017.” Compl. 1-2. But it is not apparent from the face of the complaint whether 

the 5-year limitations period expired before Jacobs filed this suit or accrued earlier 

than the 2-year limitations period. Therefore, the court only discusses the 2-year 

limitations period—as that is facially apparent. See Jones v. Alcoa, Inc., 339 F.3d 

359, 366 (5th Cir. 2006). 

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C. Jacobs should not be given an opportunity to amend his claims against 

BMW. 

Notwithstanding their failure to plead sufficient facts, the Fifth Circuit 

encourages trial courts to give pro se plaintiffs several opportunities to state a 

claim upon which relief can be granted. See Scott v. Byrnes, 2008 WL 398314, at 

*1 (N.D. Tex. Feb. 13, 2008) (Fitzwater, C.J.); Sims v. Tester, 2001 WL 627600, at 

*2 (N.D. Tex. Feb. 13, 2001) (Fitzwater, J.). Therefore, courts typically allow pro se

plaintiffs to amend their complaints when the action is to be dismissed pursuant 

to a court order. See Robinette v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 2004 

WL 789870, at *2 (N.D. Tex. Apr. 12, 2004) (Fitzwater, J.); Sims, 2001 WL 

627600, at *2. A pro se plaintiff also may obtain leave to amend his complaint in 

response to a recommended dismissal. See Swanson v. Aegis Commc’ns Grp., Inc., 

2010 WL 26459, at *1 (N.D. Tex. Jan. 5, 2010) (Fitzwater, C.J.); Scott, 2008 WL 

398314, at *1. However, dismissal with prejudice is appropriate if a court finds that 

the plaintiff has alleged his or her best case. Jones v. Greninger, 188 F.3d 322, 327 

(5th Cir. 1999) (per curiam); see also Arkansas v. Wilmington Tr. N.A., 2020 WL 

1249570, at *5 (N.D. Tex. Mar. 16, 2020) (Lindsay, J.) (citing Reliance Ins. v. La. 

Land & Expl. Co., 110 F.3d 253, 258 (5th Cir. 1997) (noting “judges have the power 

to control their dockets by refusing to give ineffective litigants a second chance to 

develop their case” (citing Turnage v. Gen. Elec. Co., 953 F.2d 206, 208-09 (5th 

Cir. 1992))).

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Even if the Court affords Jacobs an opportunity to amend, his claims against 

BMW would still be time-barred. It therefore appears Jacob has alleged his best 

case or that amendment would be futile, so an opportunity to amend is 

unwarranted. The Court should dismiss with prejudice Jacobs’s claims against 

BMW.

Recommendation

The Court should DISMISS without prejudice Jacobs’s claims against 

Experian and Equifax for failure to prosecute and obey court orders. The Court 

should GRANT BMW’s Motion to Dismiss and DISMISS with prejudice all of 

Jacobs’s claims against BMW. Lastly, if the court grants BMW’s Motion to Dismiss, 

the court should DENY AS MOOT BMW’s Motion to Stay and Compel 

Arbitration. 

SO RECOMMENDED.

December 5, 2022.

____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in 

the manner provided by law. Any party who objects to any part of this report and 

recommendation must file specific written objections within 14 days after being 

served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be 

specific, an objection must identify the specific finding or recommendation to 

which objection is made, state the basis for the objection, and specify the place in 

the magistrate judge's report and recommendation where the disputed 

determination is found. An objection that merely incorporates by reference or 

refers to the briefing before the magistrate judge is not specific. Failure to file 

specific written objections will bar the aggrieved party from appealing the factual 

findings and legal conclusions of the magistrate judge that are accepted or adopted 

by the district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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