IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RICHARD A. EJIMOLE, §

Plaintiff, §

§

§ Civil Action No. 3:05-CV-2410-M (BH)

v. §

§

JOSEPH W. BOUNDS, et al, §

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the District Court’s Standing Order of Reference and Notice of Option to

Consent to Proceed Before the Magistrate Judge, filed November 14, 2006, this case has been

referred to this Court for pretrial management. 

Plaintiff filed this case on December 7, 2005. After this Court indicated that it would

recommend denial of his motion to proceed in forma pauperis, Plaintiff ultimately paid the full

filing fee on May 12, 2006. In an Order dated June 29, 2006, this Court specifically advised

Plaintiff that he was responsible for effecting service on Defendants within 120 days from the

date of the order.

On or about September 8, 2006, the Court received directly from Plaintiff a return of

service form for each of the Defendants. Although the forms contained an illegible signature,

they were otherwise blank. The forms therefore do not demonstrate valid service on the

Defendants. Moreover, subsection (2) of rule 4 of the Federal Rules of Civil Procedure provides

that “[s]ervice may be effected by any person who is not a party and who is at least 18 years of

age.” FED. R. CIV. P. 4(c)(2) (emphasis added). Because more than 120 days had passed since

the June 29, 2006 Order, and Plaintiff failed to file a valid return of service on Defendants, this

 

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Court issued an order on May 3, 2007, directing Plaintiff to show cause for his failure to file a

valid return of service on Defendants as required by Rule 4(m). The May 3, 2007 Order directed

Plaintiff to file a valid return of service as to each Defendant, or show good cause in writing

why service could not be made, no later than May 25, 2007. The order expressly notified

Plaintiff that if he failed to comply, this Court would recommend to the District Court that this

action be dismissed for failure to prosecute without further notice. A review of the docket sheet

reveals that Plaintiff failed to comply with the May 3, 2007 Order.

Proper service must be made within 120 days of filing a complaint or the action is subject

to sua sponte dismissal, without prejudice. FED.R.CIV.P. 4(m). However, dismissal is not

proper “if the plaintiff shows good cause for the failure” to properly effect service and a court

should extend the time to serve the defendant. Id. The plaintiff bears the burden of showing

good cause. Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988). “To establish ‘good cause’

the plaintiff must demonstrate at least as much as would be required to show excusable neglect,

as to which simple inadvertence or mistake of counsel or ignorance of the rules usually do not

suffice.” Lindsey v. U.S. R.R. Retirement Bd., 101 F.3d 444, 446 (5th Cir. 1996) (quoting Peters

v. U.S., 9 F.3d 344, 345 (5th Cir. 1993)). A plaintiff also may be required to show that the party

to be served personally received actual notice of the lawsuit; the defendant would not suffer any

prejudice by the court extending the 120-day deadline; and the plaintiff would be severely

prejudiced if his complaint were dismissed. Hickman v. U.G. Lively, 897 F.Supp. 955, 959 (S.D.

Tex. 1995) (citing Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991)).

In the instant matter, Plaintiff has not complied with FED. R. CIV. P. 4(m) and Local Rule

4.1 by filing valid proof of service on the Defendants despite the Court’s admonishments. 

Accordingly, Plaintiff’s claims against Defendants should be dismissed without prejudice,

 

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pursuant to FED. R. CIV. P. 4(m).

It is therefore RECOMMENDED that all claims and causes of action asserted against

each Defendant be DISMISSED without prejudice to the refiling of same.

SO RECOMMENDED, this 4th day of June, 2007.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to

object to these findings, conclusions and recommendation must file and serve written objections

within ten (10) days after being served with a copy. A party filing objections must specifically

identify those findings, conclusions or recommendation to which objections are being made. 

The District Court need not consider frivolous, conclusory or general objections. A party’s

failure to file such written objections to these proposed findings, conclusions and

recommendation shall bar that party from a de novo determination by the District Court. See

Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales v. Casillas, 950 F.2d 1066, 1070 (5th Cir.

1992). Additionally, any failure to file written objections to the proposed findings, conclusions

and recommendation within ten (10) days after being served with a copy shall bar the aggrieved

party from appealing the factual findings and legal conclusions of the Magistrate Judge that are

accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs.

Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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