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Smith v. Champaco

United States District Court, M.D. Tennessee, Nashville Division

October 6, 2014

TYREE SMITH, et al., Plaintiffs,
v.
C/O J. CHAMPACO, et al., Defendants.

REPORT AND RECOMMENDATION

E. CLIFTON KNOWLES, Magistrate Judge.

For the reasons that follow, the undersigned recommends that the claims of Plaintiff Tyree Smith against Defendants be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m) and 41(b).

On July 11, 2014, the undersigned entered an Order noting in part that it did not appear that any of the six Defendants had ever been served with a Summons and Complaint (Docket 121), even though the Complaint in this action was filed on December 23, 2013 (Docket No. 1).

Fed. R. Civ. P. 4(m) provides in relevant part:

Time Limit for Service. If a defendant is not served within 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.

The docket reflects that, on December 26, 2013, Summonses were issued to all six Defendants and were "mailed back to pltf for service." Docket No. 2. The July 11 Order further noted that Plaintiff Tyree Smith had written at least three letters to the Court apparently addressing the service issue.[1] The undersigned's Order quoted from a letter Plaintiff had written on May 19, 2014, which stated in relevant part:

On 5.12.14, approximately. 8:36 a.m., I Mr. Tyree C. Smith, by telephone, spoke with my case manager ("Ms. Hannah") at the middle federal district court in Nashville, Tennessee.
Ms. Hannah, stated to me that I myself needed to find out the defendant's (regarding to my "proposed" civil claim) current home or job address so that I could summon (by mail) each of the defendants.
However, allegedly, I didn't have any knowledge (up until then) that I myself was to submit copies of summon to the defendants.
So therefore your honor, I will like to file this written motion for extension of time so that I could ("somehow") discover the current home or job address of each of the defendants?
Please respond back at your earliest convenience.

Docket No. 114, p. 1 (emphasis in original).

Because of Plaintiff's difficulty in finding addresses for some Defendants, the Court extended the 120 day time limit set forth in Rule 4(m). The Order further stated:

The Clerk is directed to send Plaintiff Smith six blank Summonses. Plaintiff shall complete the Summonses and return them to the Clerk's office within twenty (20) days of the date of entry of the instant Order. The Clerk will issue the Summonses, if appropriate, and return them to Plaintiff for service. Plaintiff may then have an additional period of time to and ...

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