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Smith v. Parks

United States District Court, D. South Carolina

January 23, 2019

Billie Smith, Plaintiff,
v.
Prentiss Parks, Dean Harrigal, Jean Harrigal and Andrea N. Pietras, Defendants.

          REPORT AND RECOMMENDATION AND ORDER

          Bristow Marchant, United States Magistrate Judge.

         This case has been filed by the Plaintiff alleging various claims against the named defendants. The file reflects that the Complaint was filed on March 26, 2018, and the summons were issued on August 29, 2018.

         By Order filed August 29, 2018, Plaintiff was specifically advised that she is responsible for service of process. However, there is no evidence in the file that the Defendants have ever been served with process in this case. Pursuant to Rule 4(m), Fed.R.Civ.P., “[i]f a defendant is not served within ninety (90) 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 . . . 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 August 29, 2018, and the ninety (90) day period for service provided by Rule expired on November 27, 2018.

         The filed reflects that Plaintiff requested an extension of time on November 28, 2018 which was granted on November 29, 2018 extending her deadline for service until December 28, 2018. Plaintiff then requested an additional extension of time on December 21, 2018, which was granted on January 7, 2019. Plaintiff's new deadline for service was January 18, 2019, and she was specifically advised that no further extensions would be granted due to the age of the case, and that if service was not effected by January 18, 2019, the case would be recommended for dismissal. Therefore, unless Plaintiff has made proper service on these Defendants, this case is subject to dismissal.

         Plaintiff is herein specifically advised and placed on notice that, in response to this Report and Recommendation, she is to provide the Court with proof of service on the Defendants, or present good cause to the Court for any failure to serve the Defendants, within ten (10) days of the filing of this Report and Recommendation. Failure to do so will result in this case being 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.

         However, in the event Plaintiff fails to submit to the Court proof of service on the Defendants, or to demonstrate good cause for having failed to do so, [1] within the time granted herein, it is recommended that this case be dismissed, without prejudice, pursuant to Rule 4(m), Fed.R.Civ.P.

         The parties are referred to the Notice Page attached hereto.

         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 recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

         Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402

         Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 7 ...


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