United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
BROWN, UNITED STATES MAGISTRATE JUDGE
Honorable Eli J. Richardson, District Judge
reasons stated below the Magistrate Judge recommends the
Motion to Dismiss filed by GIP Technology, Inc. and related
defendants (DE 132) be granted. The Magistrate Judge further
recommends the John/Jane Does 1-5 be dismissed without
prejudice for failure to obtain service of process on them
within 90 days as required by Fed.R.Civ.P. 4(m).
operative complaint in this matter is DE 55. Mr. Cunningham
proceeding Pro se has filed this complaint alleging
violations of Telephone Consumer Protection Act 47 U.S.C.
§ 227. Although the Plaintiff names John/Jane Does 1-5,
the Plaintiff has not further identified those defendants or
obtained Service of Process on them. The Plaintiff was
cautioned in the Court's Order of January 23, 2019 that
no Doe defendants had been identified or served and that
under Fed.R.Civ.P. 4(m) they were subject to dismissal
without prejudice unless the Plaintiff had a satisfactory
explanation for a lack of action. The record does not reflect
the Plaintiff has taken any action or provided any
explanation for failure to serve these defendants.
March 4, 2019 DE 132 the Defendant's GRS Telecom, Inc.
formerly known as CallerID4U, Inc., GOP Technology, Inc., Ada
Maduno, and Paul Maduno filed a Motion to Dismiss for failure
to state a claim as well as Res Judicata. As the date of this
Report and Recommendation the Plaintiff has filed no
opposition to this motion.
is clear under Rule 4(m) that if after notice the Plaintiff
fails to obtain service of process the complaint against such
unserved defendants is subject to dismissal without
prejudice.In this case, the Plaintiff has failed to
identify or serve the John/Jane Does 1-5 services and he has
been warned of the necessity. Dismissal without prejudice is
therefore appropriate as to these John/Jane Doe defendants.
Plaintiff has likewise failed to respond to the Motion to
Dismiss the Gateway Defendants (DE 132). Under Local Rule
7.01 (a)(3) “if a timely response is not filed, the
Motion shall be deemed to be unopposed, . . . “.
Nevertheless, the Magistrate Judge has reviewed the Motion
and its supporting Memorandum (DE 132-1) to insure it has
merit. The Memorandum goes into an extensive history of the
litigation involving the Gateway defendants and previous
litigation involving the Plaintiff in which claims against
these Defendants were dismissed Cunningham v. Rapid
Capital, et al., 315-cv-957. Absent some effort by the
Plaintiff to refute the argument made in the Gateway
Defendants Memorandum, it is not the duty of the Court to
pursue a detailed perusal of the history of this and related
cases like the proverbial blind pig routing for truffles. The
Defendants have alleged the Plaintiff has not sufficiently
pled personal involvement of various of the Gateway
Defendants and cited numerous cases to that affect. The
Plaintiff has made no effort to amend his complaint to cure
the alleged defects as he had a right to do under
Fed.R.Civ.P. 15 or to provide any additional information
concerning the personal involvement of these corporate
officers and the corporate defendant.
appears by failing to respond or to move to amend his
complaint, the Defendant has simply abandoned his claims
against these defendants. If the Plaintiff is not willing to
pursue his claims, it is not the Court's duty to pursue
them for him.
reasons stated above, the Magistrate Judge recommends the
claims against the John/Jane Does 1-5 be dismissed without
prejudice for failure to obtain service. The Magistrate Judge
further recommends the Motion to Dismiss by the Gateway
Defendants (DE 132) be granted and all claims against them be
dismissed with prejudice. Any party has fourteen (14) days
from receipt of the Report and Recommendation in which to
file any written objections to it with the District Court.
Any party opposing said objections shall have fourteen (14)
days from receipt of any objections filed in which to file
any responses to said objections. Failure to file specific
objections within fourteen (14) days of receipt of this
Report and Recommendation can constitute a waiver of further
appeal of this Recommendation.