United States District Court, W.D. Tennessee, Western Division
KENTRELL D. ROMAN, Plaintiff,
APPLE, INC., Defendant.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE
the Court is Defendant Apple, Inc.'s Motion to Dismiss.
(Docket Entry (“D.E.” #15). The instant motion
has been referred to the United States Magistrate Judge for
Report and Recommendation. Defendant requests that the Court
dismiss Plaintiff's Amended Complaint without prejudice
pursuant to Rules 12(b)(5) and 4(m) of the Federal Rules of
Civil Procedure for failure to serve Defendant with the
complaint and summons within ninety (90) days of the filing
of the complaint pursuant to Fed.R.Civ.P 4(m) and for failure
to properly serve Defendant pursuant to Fed.R.Civ.P 4.
filed a pro se complaint and a motion to proceed
in forma pauperis. (D.E. # 1 & 2.) On October
26, 2017, Plaintiff was granted leave to proceed in forma
pauperis. (D.E. # 9) Pursuant to 28 U.S.C. §
1915(e)(2)(B) and Local Rule 4.1(b)(2), the court conducts a
screening of the pro se complaint to determine
whether or not summons shall be issued by the Clerk. No
further action is required of Plaintiff or Defendant until
the court has completed its screening of the complaint. In
the event the court directs the Clerk to issue summons,
process will be served by the U.S. Marshal in accordance with
28 U.S.C. Â§ 1915(d) and Fed.R.Civ.P. 4(c)(3). On October 25,
2018, the screening was completed and an order was entered to
issue and effect service. (D.E. # 10) The Order directed the
U.S. Marshal to make service âupon Defendant pursuant to Rule
4(h)â A review of the receipt indicates that this direction
was not followed.
similar case in this district, Murrell v. Cracker
Barrel 13-cv-02619-SHL-dkv, the defendant moved for
dismissal based on insufficient service of process where the
pro se plaintiff proceeded in forma
pauperis. The summons in the case was mailed to the
defendant, was not accompanied by a copy of the complaint,
and was not received by an officer of the company nor an
employee designated to receive service of process. In the
report and recommendation by Chief Magistrate Judge Diane
Vescovo, it was recommended that the Clerk of Court
“be directed to reissue a summons to Cracker
Barrel… and to deliver the summons along with a copy
of the complaint, a copy of the Report and Recommendation and
a copy of the Order to the U.S. Marshal for service; that
service be made on Cracker Barrel Old Country Store pursuant
to Rule 4(h)(1) of the Federal Rules of Civil Procedure by
delivering the summons and documents to an officer, a
managing or general agent, or to any other agent authorized
by appointment or by law to receive service of process; that
all costs of service by advanced by the United States; and
that Cracker Barrel's motion to dismiss be denied at this
the fact that the plaintiff had not responded to the motion
to dismiss, Judge Vescovo recommended that there was good
cause for the plaintiff's failure to timely effect proper
service on Cracker Barrel. It is recommended that good cause
also exists in this case for failure to timely effect proper
service and that similar remedial efforts may be made.
Rule 12.1 provides that “[a] party opposing a motion to
dismiss must file a response within 28 days after the motion
is served.” Plaintiff did not file a timely response.
On February 20, 2019, the Court ordered Plaintiff to show
cause within fourteen days of the entry of this Order as to
why the Court should not consider the Motion to Dismiss and
recommend that the District Court enter an Order granting it.
To date, Plaintiff has not responded to the Court's Order
to Show Cause.
plaintiff fails properly to prosecute an action, it can be
dismissed either pursuant to the Court's inherent power
to control its docket, or involuntarily under Fed. R.Civ.P.
41(b). Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct.
1386, 8 L.Ed.2d 734 (1962); Boudwin v. Graystone
Insurance Co., 756 F.2d 399 (5th Cir.1985). The Sixth
Circuit has held that dismissal for failure to prosecute is
warranted where the Court affords a plaintiff a reasonable
period of time to comply with orders before the dismissal
occurs, see Harris v. Callwood, 844 F.2d 1254 (6th
Cir.1988); Sepia Enterprises, Inc. v. City of
Toledo, 462 F.2d 1315 (6th Cir.1972) (per curiam).
had an opportunity to respond to the Motion and the Order to
Show Cause and possibly avoid dismissal. Plaintiff has
ignored the Court's orders and has failed to meaningfully
participate in the case. While it is not recommended that the
complaint be dismissed for lack of prosecution at this time,
Plaintiff is cautioned that any future failure to participate
in the case or to follow the orders of the Court may result
in dismissal of his case without further notice.
it is RECOMMENDED that Defendant's Motion to Dismiss be
DENIED at this time. It is RECOMMENDED that the Clerk of the
Court be directed to reissue a summons to Apple, Inc. and to
deliver the summons along with a copy of the Amended
Complaint to the U.S. Marshal for service; and that service
be made on Apple, Inc. pursuant to Rule 4(h)(1) of the
Federal Rules of Civil Procedure by delivering the summons
and the documents to an officer, a managing or general agent,
or any other agent authorized by appointment or by law to
receive service of process; that all costs of service be
advanced by the United States.
FURTHER RECOMMENDED that Plaintiff be cautioned that further
failures to comply with orders of the court or to participate
in this case may result in the dismissal of the complaint
without further warning.
OBJECTIONS OR EXCEPTIONS TO THIS REPORT MUST BE FILED WITHIN
FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THE
REPORT. 28 U.S.C. § 636(b)(1)(C). FAILURE TO FILE THEM
WITHIN FOURTEEN (14) DAYS MAY CONSTITUTE A WAIVER OF
OBJECTIONS, EXCEPTIONS, AND ANY FURTHER APPEAL.