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Williams v. Cash America

United States District Court, D. South Carolina, Greenville Division

July 3, 2018

Reggie Mandell Williams, Plaintiff,
v.
Cash America, Brain Brook, and Roger Iverson, Defendants.

          REPORT OF MAGISTRATE JUDGE

          KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE

         This is an employment discrimination action filed by a pro se litigant. This case was referred to the undersigned for all pretrial proceedings pursuant to Local Civil Rule 73.02(B)(2) (D.S.C.). In the instant action, it is necessary for the undersigned to address a service issue concerning one of the defendants. See Fed. R. Civ. P. 4(m) (the court, “on motion or on its own after notice to the plaintiff” must address timeliness of service).

         BACKGROUND

         On March 27, 2018, the undersigned entered an order authorizing the United States Marshals Service (“USMS”) to serve process on all defendants (doc. 20). The plaintiff provided a summons and Forms USM-285, which listed the addresses for the defendants Cash America, Brain Brook, and Roger Iverson. The Clerk of Court forwarded the service packet to the USMS. The defendants Cash America and Iverson were served on April 18, 2018 (doc. 24). On June 4, 2018, the summons for the defendant Brook was returned as unexecuted (doc. 40).

         On June 5, 2018, the undersigned issued an order directing the plaintiff to provide sufficient information for service of process as to Brook (doc. 42). The plaintiff was given 21 days (plus three mailing days) to complete and return the service information for defendant Brook. The court's order warned the plaintiff that if he did not provide updated service documents for the defendant Brook within the time permitted by this order Brook could be dismissed due to the plaintiff's failure to prosecute and failure to comply with an order of this court under Federal Rule of Civil Procedure 41. The time for providing this information has passed, and the plaintiff has not provided the information as directed.

         DISCUSSION

         Federal Rule of Civil Procedure 4 requires that a defendant must be served with a summons and a copy of the complaint within 90 days after the complaint is filed. Fed.R.Civ.P. 4(c)(1), (m). If a defendant is not served within the 90-day period, “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.” Id. 4(m). However, “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id. Furthermore, “[e]ven if the [p]laintiff cannot show good cause, the court may, in its discretion, grant an extension of time if it deems such an extension to be warranted.” PerriClair v. The Ace P'ship of Charleston SC, C.A. No. 2:09-cv-1584-MBS, 2011 WL 765671, at *1 (D.S.C. Feb.23, 2011).

         In forma pauperis plaintiffs, like the plaintiff here, “must rely on the district court and the USMS to effect service and should not be penalized for delay in service beyond their control.” Scott v. Md. State Dep't of Lab., 673 Fed.Appx. 299, 305 (4th Cir. 2016) (citation and internal quotation marks omitted). However, it is the plaintiff's responsibility to provide proper addresses for service. Id. (citation omitted). Here, it is clear that the plaintiff received the order directing him to provide the correct service information for Brook.[1] The court warned the plaintiff that defendant Brook could be dismissed could be dismissed from the case if he failed to provide the updated service information as directed by the court (docs. 8, 42). However, the plaintiff did not provide updated service information, and he has failed to show that this defendant has been served or that good cause exists for his failure to timely serve defendant Brook. As such, Brook should be dismissed sua sponte as a defendant to this action. See, e.g., Scott v. Hamidullah, C.A. No. 3:05-3027-CMC-JRM, 2007 WL 904803, at *3 (D.S.C. March 21, 2007).

         RECOMMENDATION

         Accordingly, the undersigned recommends that the defendant Brain Brook be dismissed sua sponte as a defendant to this action.

         IT IS SO RECOMMENDED.

         The parties' attention is directed to the important notice on the next page.

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the ...


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