IN THE UNITED STATES DISTRICT COURT

OF THE EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

JOSHUA HUFFMAN §

§

V. § No. 5:23cv00141-RWS-JBB

§

EAST TEXAS PROFESSIONAL §

CREDIT UNION §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The above case was referred to a United States Magistrate Judge for pretrial purposes in

accordance with 28 U.S.C. § 636. The Court recommends the above-entitled and numbered cause

of action be DISMISSED WITHOUT PREJUDICE for failure to perfect service.

Plaintiff Joshua Huffman (“Plaintiff”) brings this action against East Texas Professional

Credit Union (“Defendant”) for alleged violations of the Fair Credit Reporting Act, 15 U.S.C. 1681,

et seq. (“FCRA”). The complaint was filed on November 28, 2023.

Federal Rule of Civil Procedure 4(m) provides that “if a defendant is not served within 90

days after the [action] is [commenced], 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.” FED.R.CIV.P.4(m). Pursuant to Rule 4(m), Plaintiff had ninety days

– or until February 26, 2024 – to perfect service on Defendant. As of March 4, 2024, there was

nothing on the docket suggesting Plaintiff had attempted service on Defendant.

Therefore, on March 4, 2024, the Court issued an order, noting that ninety days had passed

since the filing of the complaint and no return of service had been filed. See Dkt. No. 4. The Court

ordered Plaintiff to serve Defendant no later than thirty days from the date of entry of the order,

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advising Plaintiff that failure to serve Defendant or otherwise act would result in a recommendation

that Plaintiff’s claims be dismissed without prejudice. Id. at 2 (further stating that if dismissal is

satisfactory to Plaintiff, no further action is necessary). 

It has been over thirty days with no further action from Plaintiff. Because it has been over

ninety (90) days after the action was commenced and no return of service has been filed to date, the

undersigned recommends the Court dismiss Plaintiff’s action without prejudice. Accordingly, it is 

RECOMMENDED that the above-entitled and numbered cause of action be DISMISSED

WITHOUT PREJUDICE for failure to perfect service within the time prescribed by the Federal

Rules of Civil Procedure. It is further

RECOMMENDED that the Court instruct the Clerk of the Court to close the above case.

Objections

Within fourteen (14) days after service ofthe magistrate judge’s report, any party must serve

and file specific written objections to the findings and recommendations of the magistrate judge. 

28 U.S.C. § 636(b)(1)(C). 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 party fromappealing the unobjected-to

factual findings and legal conclusions of the magistrate judge that are accepted by the district court,

except upon grounds of plain error, provided that the party has been served with notice that such

consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d

2

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1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1)

(extending the time to file objections from ten to fourteen days).

3

____________________________________

J. Boone Baxter

UNITED STATES MAGISTRATE JUDGE

SIGNED this the 16th day of April, 2024.

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