IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SANDRA CALDWELL, :

Plaintiff, :

vs. : CA 04-0819-WS-C

PROVIDENCE FAMILY :

PHYSICIAN, et al.,

:

Defendants.

REPORT AND RECOMMENDATION

A review of this action reveals that plaintiff’s complaint was filed on

December 27, 2004 (Doc. 1) and a filing fee was paid on May 16, 2005 (Doc.

4). Subsequent to those two events, plaintiff has failed to make a return of

service on any defendant or attempted to notify the Court by any means that

the defendants have been served with a copy of the summons and complaint.

She was required by Order of November 9, 2005 to show cause as to why this

action should not be dismissed for failure to serve the defendants within the

time limits required by Rule 4, Federal Rules of Civil Procedure. No response

to that Order has been filed and the Court was unable to reach her for a

telephone conference on December 19, 2005. The undersigned’s staff was

notified that the phone number given by plaintiff has been disconnected with

no forwarding information provided. 

FINDINGS OF FACT

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1. Plaintiff filed a handwritten complaint on December 27, 2004,

alleging that she was terminated from her employment as a medical assistant

on December 22, 2003. She alleges that her termination was based on racial

discrimination and in retaliation for complaints that she filed. She seeks lost

wages and compensation for pain and suffering endured while working in a

hostile work environment.

2. Along with her complaint, she filed a motion for leave to

proceed in forma pauperis (Doc. 2). This motion was denied on April 29,

2005 (Doc. 3) and no appeal of that order was filed. 

3. Subsequent to the Order denying her the right to proceed in

forma pauperis, plaintiff paid a $250.00 filing fee on May 16, 2005 (Doc. 4).

4. On September 30, 2005, the undersigned incorrectly entered a

Report and Recommendation that the complaint be dismissed due to plaintiff’s

failure to prosecute. Once that error was recognized on November 7, 2005,

through the Court’s normal review of its docket, the Report and

Recommendation was withdrawn (Doc. 6) and the plaintiff was ordered to

show cause as to why her complaint should not be dismissed for failure to

serve the defendants within the time limits required by Rule 4, Federal Rules

of Civil Procedure (Doc. 7).

5. Plaintiff has not taken any action in this matter since the paying

of the filing fee on May 16, 2005, and has failed to respond to the Court’s

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1 It is assumed that she is referring to Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e, et seq.

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Order of November 9, 2005. 

6. In an attempt to verify plaintiff’s position and the status of this

action, the undersigned’s staff was instructed to contact Ms. Caldwell at the

phone number she listed on her complaint, (251) 479-9865. An attempt to

contact her at that number proved unsuccessful. The only information

received from that phone call was provided by a recording that notified the

caller that the number had been disconnected with no additional information.

CONCLUSIONS OF LAW

1. Plaintiff is proceeding pro se and has alleged that the defendants

subjected her to racial discrimination and retaliation which ultimately resulted

in her termination on or about December 22, 2003; all in violation of “Title

VII”1

 She seeks lost wages and damages from pain and suffering endured

while working in a hostile environment. (Complaint, Doc. 1). In support of

her complaint, she has filed a Right-to-Sue Notice that she received for the

Equal Employment Opportunity Commission dated September 27, 2004 (Doc.

1, pp. 6-7).

2. Plaintiff has sued what appear to be business entities,

Providence Family Physicians, Tillman’s Corner; Seton Medical Management;

and Providence Hospital. The Court is not aware of the specific type of

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business entities that have been sued, since plaintiff has not identified whether

they are corporations, associations or some other type of entity. Even so, it is

assumed that service is to be effected pursuant to Rule 4(h), Federal Rules of

Civil Procedure:

Unless otherwise provided by federal law, service

upon a domestic or foreign corporation or upon a

partnership or other unincorporated association

that is subject to suit under a common name, and

from which a waiver of service has not been

obtained and filed, shall be affected:

(1) in a judicial district of the

United States in the manner

prescribed for individuals by

subdivision (e)(1), or by delivering

a copy of the summons and of the

complaint to an officer, a managing

or general agent, or to any other

agent authorized by appointment or

by law to receive service of process

and, if the agent is one authorized

by statute to receive service and the

statute so requires, by also mailing

a copy to the defendant . . . .

(Id.)

3. Rule 4(m) provides an extendable 120-day time prescription for

service of the summons and complaint:

If service of the summons and complaint is not

made upon a defendant within 120 days after the

filing of the complaint, the court, upon motion or

on its own initiative, after notice to the plaintiff,

shall dismiss the action without prejudice as to

that defendant or direct that service be effected

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 The Court began the 120-day time period after payment of the filing fee on May

16, 2005.

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within a specific time; provided that if the

plaintiff shows good cause for the failure, the

court shall extend the time for service for an

appropriate period.

Thus, “[c]omplaints are not to be dismissed if served within 120 days, or

within such additional time the court may allow.” Henderson v. United States,

517 U.S. 654, 663 (1996). The 120-day period expired in this action on

September 19, 2005.2

 No extension of the service period has been requested

by plaintiff or granted by this Court. Instead, this Court required the plaintiff

to prove service or show cause as to why the complaint should not be

dismissed no later than December 9, 2005 (Doc. 7).

4. Once the summons and complaint have been served, plaintiffs

are “to make proof thereof to the Court.” Rule 4(l), Federal Rules of Civil

Procedure. Persons other than the United States marshal or one of his deputies

that perform the duties of process server must produce proof of service by

affidavit. (Id.) “When service of process is challenged, the party on whose

behalf it is made must bear the burden of establishing its validity.” Aetna

Business Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d

434, 435 (5th Cir. 1981); Familia de Boom v. Arosa Mercantile, S.A., 629 F.2d

1134, 1139 (5th Cir. 1980). Even after this Court’s November 9, 2005 Order,

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3 See Horenkamp v. Van Winkle And Co., Inc., 402 F.3d 1129 (11th Cir. 2005) for a

discussion of the change brought with the 1993 Amendment.

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plaintiff has failed to present an affidavit that proved service on the defendant

business entities. She has not offered proof that any defendant has actually

received a copy of the summons and complaint. 

5. Prior to the Amendment of Rule 4 in 1993, the Eleventh Circuit

had found that when plaintiffs failed to present proof that service on

defendants was perfected within 120 days of the filing of the complaint, courts

were required to dismiss the action without prejudice unless plaintiffs could

show good cause for failing to perfect timely service.3

 If good cause were

shown, the time for service could be extended. See Schnabel v. Wells, 922

F.2d 726, 728-29 (11th Cir. 1991)(“However, under Rule 4(j), dismissal is

mandatory if service is not perfected within 120 days of filing the complaint

unless good cause is shown. No showing of cause was made in this case.

Indeed, Schnabel was on notice as of January 18, 1989, when Wells filed his

answer that sufficiency of process was at issue. At that time, more than two

months remained of the 120-day period provided by Rule 4(j), yet Schnabel

made no attempt to correct the defective service or even to inquire into the

alleged deficiency.”); see also Hunt v. Dep’t of the Air Force, 29 F.3d 583,

387 (11th Cir. 1994)(“Action dismissed without prejudice, even though status

of limitations had expired, because plaintiff failed to serve the United States

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4 The Court’s case management records reveal that a copy of this Order was mailed

to the address provided by plaintiff and does not indicate that plaintiff’s copy of the Order was

returned as undeliverable. The inference is that she received the Order but chose not to respond.

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Attorney.”) Since 1993, district courts also have discretion to extend the time

for service without a showing of good cause. Henderson v. United States,

supra. In this action, while it is true that the plaintiff is proceeding pro se, and

therefore may not have a working knowledge of the Rules at issue, she has

failed to keep the Court aware of her contact information and has not taken any

action in this case since the posting of her filing fee in May, 2005.

Furthermore, she has failed or refused to respond to the show cause Order that

was entered in November, 2005.4

 Under these circumstances, plaintiff has

failed to give the Court any valid reason to grant her an extension of the time

required for service of process.

CONCLUSION

Plaintiff has failed to prove that she has served any defendant with a

copy of the summons and complaint, and has taken no action in this case since

the payment of her filing fee on May 16, 2005. The Court was unable to reach

her at the phone number listed on her complaint, and has not received any

response from her with regard to the show cause order entered in November,

2005. Under these circumstances, it is recommended that this action be

dismissed without prejudice pursuant Rule 4(m).

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The attached sheet contains important information regarding objection

to this report and recommendation.

DONE this 20th day of December, 2005.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation, or anything in it,

must, within ten days of the date of service of this document, file specific written

objections with the Clerk of this Court. Failure to do so will bar a de novo

determination by the district judge of anything in the recommendation and will bar

an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C.

§ 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for

challenging the findings and recommendations of the Magistrate Judge is set out in

more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate

judge in a dispositive matter, that is, a matter excepted by 28 U.S.C.

§ 636(b)(1)(A), by filing a “Statement of Objection to Magistrate

Judge’s Recommendation” within ten days after being served with a

copy of the recommendation, unless a different time is established by

order. The statement of objection shall specify those portions of the

recommendation to which objection is made and the basis for the

objection. The objecting party shall submit to the district judge, at

the time of filing the objection, a brief setting forth the party’s

arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient

to submit only a copy of the original brief submitted to the magistrate

judge, although a copy of the original brief may be submitted or

referred to and incorporated into the brief in support of the objection.

Failure to submit a brief in support of the objection may be deemed

an abandonment of the objection. 

A magistrate judge's recommendation cannot be appealed to a Court of

Appeals; only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28

U.S.C. § 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and

original records in this case are adequate for purposes of review. Any party planning

to object to this recommendation, but unable to pay the fee for a transcript, is advised

that a judicial determination that transcription is necessary is required before the

United States will pay the cost of the transcript.

s/WILLIAM E. CASSADY 004 2

UNITED STATES MAGISTRATE JUDGE

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