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Myers v. Vanderbilt Mortgage and Finance, Inc.

United States District Court, D. South Carolina

August 6, 2019

Connie Singleton Myers, Plaintiff,
v.
Vanderbilt Mortgage and Finance, Inc., JP Morgan Chase Bank, N.A., and Does 1-5, Defendants.

          REPORT AND RECOMMENDATION AND ORDER

          BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE.

         This case has been filed by the Plaintiff, pro se, asserting various claims against the named Defendants. The docket reflects that the Complaint was filed on February 6, 2019, and the summons were issued on May 1, 2019.

         By Order filed April 30, 2019, Plaintiff was advised that she is responsible for service of process. See Order (Court Docket No. 8). 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 May 1, 2019, and the ninety (90) day period for service provided by Rule expired on July 30, 2019. See Robinson v. Clipse, 602 F.3d 605, 608-609 (4th Cir. 2010) [Tolling during initial review]. Therefore, unless Plaintiff has made proper service on the 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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