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Cantrell v. Parker Corp.

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

November 14, 2014

EARLENE CANTRELL, Plaintiff,
v.
PARKER CORP., Defendant.

REPORT AND RECOMMENDATION

JOE B. BROWN, Magistrate Judge.

TO: THE HONORABLE ALETA A. TRAUGER

For the reasons stated below the Magistrate Judge recommends that this case be dismissed without prejudice for failure to obtain service of process under Federal Rule of Civil Procedure 4(m) and failure to obey Court orders under Federal Rule of Civil Procedure 41(b).

BACKGROUND

The matter was referred to the undersigned for case management and for a report and recommendation on any dispositive matter (Docket Entry 2). The Plaintiff, acting pro se, filed her complaint against Parker Corp.[1] on December 13, 2013 (Docket Entry 1) alleging a violation of Title VII of the Civil Rights Act of 1964. The Plaintiff paid the $400 filing fee.

In January 2014 the Magistrate Judge directed the Plaintiff to obtain summonses for the Defendant from the Clerk of Court and that the Plaintiff should follow Rule 4 of the Federal Rules of Civil Procedure to serve an appropriate officer of the Defendant Parker Corp. She was advised that under Rule 4(m) of the Federal Rules of Civil Procedure she must complete service of process on this Defendant within 120 days of filing the complaint on December 13, 2014, and that failure to do so could result in her case being dismissed without prejudice (Docket Entry 4). The Plaintiff received this order by certified mail (Docket Entry 6).

Subsequently, on April 23, 2014, the Magistrate Judge entered a show cause order directing the Plaintiff to show cause why her case should not be dismissed for failure to obtain service of process (Docket Entry 8).

Unfortunately, it appears that this order was not sent to the Plaintiff by the Clerk's office, and accordingly, the report and recommendation (Docket Entry 9) recommending that the case be dismissed without prejudice was rejected by the District Judge when the failure of the Clerk's office to send the report and recommendation to the Plaintiff was called to her attention (Docket Entry 13).

Following the rejection of the report and recommendation, on August 27, 2014 the Magistrate Judge again entered an order directing the Clerk to send another copy of Docket Entry 4 to the Plaintiff and giving the Plaintiff until September 29, 2014, to obtain service of process on the Defendant (Docket Entry 15). The Plaintiff was advised that if she no longer had the summonses she was originally issued by the Clerk's office when she filed her lawsuit, she should immediately come to the Clerk's office and obtain summonses and then follow the procedures set out in Rule 4 of the Federal Rules of Civil Procedure to serve the Defendant.

Plaintiff was specifically advised that if she was unable to comply with the order because of her earlier medical and personal problems, she must submit a motion for extension of time, and the motion must be supported by a doctor's statement or other statements as to why she was unable to complete service of process. This order was sent by certified mail, and according to Docket Entry 17, was signed for at the Plaintiff's address. The signature of the receiving party is illegible. The Clerk's notes show that the order was also sent by regular mail and there is no indication that the regular mail was returned.

The next entry on the docket sheet is that summonses were issued to Plaintiff on September 29, 2014. As of the date of this report and recommendation there is no indication that Plaintiff has actually served the summonses. She has not requested additional time for service.

We are now 11 months past the date the Plaintiff filed her lawsuit and the date of this report and recommendation.

LEGAL DISCUSSION

A dismissal with or without prejudice is a drastic remedy, and before the Court contemplates dismissing an action under Rule 41(b), ...


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