United States District Court, M.D. Tennessee, Nashville Division
A. Trauger, Judge
REPORT AND RECOMMENDATION
ALISTAIR E. NEWBERN, UNITED STATES MAGISTRATE JUDGE
Honorable Aleta A. Trauger, District Judge
Plaintiffs Latonya Waddell, Michael Reeves, and Spencer
Reeves, Jr. have yet to serve any of the defendants named in
this civil rights action. On April 15, 2019, the Court
ordered the plaintiffs to show cause by May 2, 2019, why the
Magistrate Judge should not recommend that this action be
dismissed, warning them that failure to respond could result
in a recommendation of dismissal. (Doc. No. 7.) Plaintiffs
have not responded to the Court's Order. For the reasons
that follow, the Magistrate Judge will recommend that this
action be dismissed without prejudice under Federal Rule of
Civil Procedure 4(m).
Factual and Procedural Background
plaintiffs, who are proceeding pro se, initiated this action
on July 30, 2018, and bring claims under 42 U.S.C. §
1983 and state law alleging that their deceased father,
Spencer Reeves, Sr., was denied necessary medical care while
incarcerated at the Lois M. DeBerry Special Needs Facility
(DSNF). That facility is operated by the Tennessee Department
of Correction (TDOC). (Doc. No. 1.) Plaintiffs named the
State of Tennessee and TDOC Commissioner Tony Parker as
defendants as well as DSNF employees Anidolee Melville
Chester, James M. Holiday, and John and Jane Does 1-5.
(Id.) On August 8, 2018, the Court found on its own
review that it lacked subject-matter jurisdiction over
Plaintiffs' claims against the State of Tennessee and
TDOC Commissioner Parker and dismissed those claims on
sovereign immunity grounds. (Doc. No. 4.) The Court informed
the plaintiffs that they were responsible for effecting
service on Defendants Chester, Holiday, and Does 1-5 and
directed them to the Court's website for applicable
forms, information about service of process, and a copy of
this Court's Local Rules. (Id.) The Court also
cautioned the plaintiffs that they must keep the court
informed of their current addresses at all times and that
failure to do so could result in dismissal for failure to
prosecute. (Id.) The plaintiffs did not request
summonses and did not return proofs of service for any of the
remaining defendants in this action. Mail sent to Plaintiffs
Michael Reeves and Spencer Reeves, Jr. by the Court has been
returned as undeliverable (Doc. Nos. 5, 6, 8), suggesting
that they have failed to keep the Court informed of their
current mailing addresses (Doc. No. 4) and Local Rule
41.01(b). See M.D. Tenn. R. 41.01(b) (dismissal for
failure of pro se plaintiff to keep court apprised
of current address).
April 15, 2019, the Court ordered the plaintiffs to show
cause why the Magistrate Judge should not recommend that this
action be dismissed for failure to effect service, among
other reasons. (Doc. No. 7.) The Court warned the plaintiffs
that failure to respond to that order could result in a
recommendation that their claims be dismissed. (Id.)
As of the date of this report and recommendation, the
plaintiffs have not filed a response to the Court's order
to show cause, and there is no indication that any of the
defendants in this action have been served.
Rule of Civil Procedure 4(m) provides that “[i]f a
defendant is not served within 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 or order that service be made within a
specified time.” Fed.R.Civ.P. 4(m). The Court must
extend the time for service upon a showing of good cause, and
the Court may exercise its discretion to permit late service
even where a plaintiff has not shown good cause. Fed.R.Civ.P.
4(m) advisory committee's note to the 1993 amendment
(explaining that Rule 4(m) “explicitly provides that
the court shall allow additional time if there is good cause
for the plaintiff's failure to effect service . . . and
authorizes the court to [grant relief] . . . even if there is
no good cause shown”); see also Henderson v. United
States, 517 U.S. 654, 662 (1996); DeVane v.
Hannah, No. 3:11-cv-00389, 2011 WL 5916433, at *2 (M.D.
Tenn. Nov. 28, 2011). Absent either showing, the language of
Rule 4(m) mandates dismissal, either on motion or sua sponte.
Fed.R.Civ.P. 4(m); see also Byrd v. Stone, 94 F.3d
217, 219 & n.3 (6th Cir. 1996). It is well established
that Rule 4(m) empowers a court to dismiss complaints without
prejudice “upon the court's own initiative with
notice to the plaintiff.” Hason v. Med. Bd. of
Cal., 279 F.3d 1167, 1174 (9th Cir. 2002); Friedman
v. Estate of Presser, 929 F.2d 1151, 1155 n.4 (6th Cir.
1991) (noting that “the issue of ineffective service of
process may be raised sua sponte”).
requirement of proper service of process ‘is not some
mindless technicality, '” Friedman, 929
F.2d at 1156 (quoting Del Raine v. Carlson, 826 F.2d
698, 704 (7th Cir. 1987)), nor is it “meant to be a
game or obstacle course for plaintiffs[, ]” Ace Am.
Ins. Co. v. Meadowlands Developer Ltd. P'ship, 140
F.Supp.3d 450, 455 (E.D. Pa. 2015). Rather, it goes to the
very heart of a court's ability to hear a case.
“[W]ithout proper service of process, consent, waiver,
or forfeiture, a court may not exercise personal jurisdiction
over a named defendant.” King v. Taylor, 694
F.3d 650, 655 (6th Cir. 2012); see also Mann v.
Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (explaining
that “[s]ervice is . . . not only a means of notifying
a defendant of the commencement of an action against
him,' but ‘a ritual that marks the court's
assertion of jurisdiction over the lawsuit” (citation
omitted)). Where personal jurisdiction is not properly
established, a court cannot exercise its authority consistent
with due process of law. See Friedman, 929 F.2d at
action has been pending for nearly 300 days without proper
service of process on any defendant. The Court notified the
plaintiffs early on that they were responsible for serving
process on each defendant in accordance with the Federal
Rules of Civil Procedure. (Doc. No. 4.) When the time for
service under Rule 4(m) had passed, the Court issued a show
cause order notifying the plaintiffs of that fact and
providing them with an opportunity to explain why the Court
should extend the service deadline instead of dismissing the
action. (Doc. No. 7.) The plaintiffs did not respond. Because
the plaintiffs have not served any of the defendants in this
action in compliance with Rule 4 despite ample time to do so
and notice that failure may result in dismissal, dismissal
without prejudice under Rule 4(m) is appropriate.
these reasons, the Magistrate Judge RECOMMENDS that this
action be DISMISSED WITHOUT PREJUDICE under ...