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Roane v. Donovan

United States District Court, D. South Carolina

January 22, 2015

Mildred Linnette Roane, Plaintiff,
v.
Shaun Donovan, in his capacity as Secretary of the United States Department of Housing and Urban Development 451 7th Street S.W. Washington DC 29410; Bank of America NA; and Wells Fargo Bank NA, Defendants

Mildred Linnette Roane, Plaintiff, Pro se, Charleston, SC.

For Bank of America NA, Wells Fargo Bank NA, Defendants: Sean Matthew Foerster, LEAD ATTORNEY, Rogers Townsend and Thomas, Columbia, SC.

REPORT AND RECOMMENDATION

Bristow Marchant, United States Magistrate Judge.

This action has been filed by the Plaintiff, pro se. Plaintiff's case involves a contract dispute with the Defendants.[1] The file reflects that the Complaint was filed on April 2, 2014, and the summons were issued on June 20, 2014.

In an Order filed July 1, 2014, Plaintiff was specifically advised that she was responsible for service of process under Rule 4, Fed.R.Civ.P., and that if the Defendants were not served within one hundred and twenty (120) days from the date the summonses were issued, this case could be dismissed. However, no return of service was ever filed with the Court, and the time for service expired on November 3, 2014. In consideration of Plaintiff's pro se status, a second Order was then issued on December 5, 2014, in which Plaintiff was ordered to file proof of service on the Defendants by no later than January 20, 2015, and further notifying her that if she failed to do so, this action could be dismissed with prejudice. Rule 4(m), Fed.R.Civ.P. However, Plaintiff has still provided no proof that any Defendant has ever been served with process in this case, and indeed Plaintiff did not even respond to the Court's Order.

Pursuant to Rule 4(m), Fed.R.Civ.P., " [i]f a defendant is not served within one hundred and twenty (120) 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 or order that service be made within a specified time. But if the Plaintiff shows good cause for the failure, the Court must extend the time for service for an appropriate period." Here, the time for service began to run on June 20, 2014, the one hundred and twenty (120) day period for service provided by Rule expired on November 3, 2014, and Plaintiff has failed to present good cause for her failure to effect service on the Defendants. Plaintiff has also failed to even respond to this Court's Order advising her that her case would be dismissed if she failed to comply with the Court's instructions. See Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084, 110 S.Ct. 1145, 107 L.Ed.2d 1049 (1990) [Magistrate Judge's prior explicit warning that a recommendation of dismissal would result from plaintiff failing to obey his order was proper grounds for the district court to dismiss suit when plaintiff did not comply despite warning].[2] Therefore, this case should be dismissed.

Conclusion

If in response to this Report and Recommendation, Plaintiff submits to the Court proof of timely service on the Defendants, then in that event IT IS ORDERED that this Report and Recommendation be vacated, and that the file be returned to the undersigned for further proceedings.

In the event Plaintiff fails to submit to the Court proof of service on the Defendants, however, or to demonstrate good cause for having failed to do so, [3] within the time granted herein, it is recommended that this case be dismissed, without prejudice, [4] pursuant to Rule 4(m), Fed.R.Civ.P.

The parties are referred to the Notice Page attached hereto.


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