IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

 

WILTON IRVON LOMBARD, JR., §

§

Plaintiff, §

 §

v. § No. 4:22-cv-00785-O-BP

 §

VIC SCHOBER, et al., §

 §

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

On September 2, 2022, pro se Plaintiff filed a complaint against Vic Schober, James 

Jackson, Richard Dubose, Richard Plunk, Roger Hoffpauier, Kenneth Vermette, Debbie 

Vermette, Assemblies of God Financial Group, Gerald Hindy, Ahmet Sbiati, Alshall Financial 

Group, Michael Tracy, Dayna Oliver (“original defendants”) in this case. ECF No. 1. Because 

he had paid the filing fee, he was responsible for serving the original defendants with a summons 

and copy of the complaint in this case within ninety days as provided by Rule 4(c) of the Federal 

Rules of Civil Procedure. ECF No. 12. Plaintiff did not serve the original defendants by the 

deadline. 

On December 4, 2022, Plaintiff filed the amended complaint and added Randel David 

Lee Barrett, Rev. Thomas Trask, Rev. Charles Crabtree, Rev. Doug Clay, Robert Forshey, and 

Jeff Prostok (“new defendants”) to this case. ECF No. 14. Because he paid the filing fee, Plaintiff

also was responsible for serving the new defendants with a summons and a copy of the amended 

complaint case as provided by Rule 4(c) of the Federal Rules of Civil Procedure. ECF No. 15. 

The Court ordered Plaintiff to serve the new defendants on or before March 9, 2023, ninety days

after the filing of the amended complaint. Id; See Fed. R. Civ. P. 4(m). Additionally, Federal

Rule of Civil Procedure. 4(l) requires Plaintiff to file proof of service with the Court unless 

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service is waived. This proof must consist of “the server’s affidavit” if service was not effected

by the United States Marshal or a deputy marshal. Fed. R. Civ. P. 4(m).

On December 9, 2022, the undersigned sua sponte extended the deadline by thirty days 

for Plaintiff to serve the original defendants on or before January 9, 2023, and pursuant to Rule 

4(c) of the Federal Rules of Civil Procedure, ordered Plaintiff to serve the new defendants on or 

before March 9, 2023. ECF No. 15. The Order also notified Plaintiff that if he “does not serve 

the original defendants with process by the deadline,” or “does not file a valid return of service

or otherwise show that the original defendants and the new defendants were properly served,” the 

undersigned would recommend to United States District Judge Reed O’Connor “that any 

defendant who was not properly served be dismissed from this case without prejudice pursuant 

to Rule 4(c).” Id. 

On February 21, 2023, the undersigned granted Plaintiff’s Motion to Extend More Time 

for Service and ordered him to serve all original defendants and new defendants and file a valid 

return of service or otherwise show that all defendants were properly served on or before April 

1, 2023. ECF No. 24. Again, the Court reminded Plaintiff that if he did not serve all of the 

original defendants and all of the new defendants with process and provide proof to the Court 

that he had properly served all of the defendants by April 1, 2023, the undersigned “would 

recommend to Judge O’Connor that any defendant not properly served be dismissed from this 

case without prejudice pursuant to Rule 4(c).” To date, Plaintiff has neither provided proof of 

prior proper service nor effectuated proper service on any of the Defendants in this case.

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 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. Id. 4(l)(1). 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 

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dismiss the action without prejudice against that defendant,” unless the plaintiff shows both (1) 

good cause for her failure to timely and properly effect service and (2) good cause for the court to 

extend the time for service for an appropriate period. Id. 4(m); Lewis v. Sec'y of Pub. Safety &

Corr., 870 F.3d 365, 369 (5th Cir. 2017). “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).”

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 h[er] failure to effect service in compliance 

with the rules.” Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988)).

Plaintiff has neither served process on any of the Defendants in a timely fashion under 

Federal Rule of Civil Procedure 4 nor has he filed a proof of service with the Court. Additionally, 

he did not show cause why the Court should not dismiss his case against all defendants for failing 

to serve process as ordered. Accordingly, the undersigned RECOMMENDS that Judge O’Connor 

DISMISS without prejudice Plaintiff’s claims against all of the defendants in this case under 

Fed. R. Civ. P. 4(m) for failure to timely serve process.

A copy of these findings, conclusions, and recommendation shall be served on all parties

in the manner provided by law. Any party who objects to any part of these findings, conclusions, 

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)(2). To be specific, an objection must 

identify the particular finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge’s findings, conclusions, 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 

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upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th 

Cir. 1996) (en banc).

SIGNED on April 21, 2023.

__________________________________

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

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