United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
Brown United States Magistrate Judge.
reason states below, the Magistrate Judge recommends this
case be dismissed without prejudice for failure to obtain
service of process and to prosecute the case.
Plaintiff with the assistance of an attorney, Andy Allman,
filed a complaint against American Baptist Theological
Seminary (ABTS) on August 26, 2016 (DE 1) and paid the filing
fee. The docket sheet reflects summons were issued for ABTS
on August 29, 2016 (DE 4). Unfortunately, it appears the
summons were never served, and Mr. Allman was subsequently
suspended from practice of law effective October 9, 2016. The
Plaintiff was given until December 9, 2016 to obtain new
counsel (DE 5). The Clerk sent a notice of Mr. Allman's
suspension from the practice of law on February 2, 2017 and
advised her of attorneys that might be willing to consider
handling this type of case. There is no indication this
notice from the Clerk which was sent by both regular
certified mail was returned. The next action in the case
occurred on June 13, 2019 when the matter was referred to me
for a scheduling order and a decision on all nondispositive
motions and a Report and Recommendation on dispositive
matters by Judge Trauger (DE 6). Subsequently I issued an
order notifying the Plaintiff that service had not been
accomplished and she was given until July 1, 2019 to show
cause why I should not recommend the case be dismissed
without prejudice. It appears the certified mail sent to the
Plaintiff on June 17, 2019 was returned on June 25, 2019 as
“not deliverable as addressed - unable to
forward” (DE 10).
the date of this Report and Recommendation, the Plaintiff has
filed nothing in this matter.
Fed.R.Civ.P. 4(m) summons must be served within ninety (90)
days after the complaint is filed or the Court on motion of
its own after notice to the Plaintiff must dismiss the action
without prejudice against the Defendant or order that service
be made within a specific time. If the Plaintiff can show
good cause for the failure the Court must extend the time for
service for an appropriate period. In this case, the
Plaintiff was given notice in the Court's order of June
14, 2019 (DE 7) that service had not been accomplished and
she was given until July 1, 2019 to show cause why I should
not recommend the case be dismissed without prejudice for
failure to obtain service. Unfortunately, it appears the
Plaintiff has not kept a current address on file with the
Court and mail sent to her has been returned. The District
Judge gave the plaintiff a specific instruction and her order
(DE 5) of what the Plaintiff needed to do by December 9, 2016
and the Clerk sent the Plaintiff a letter concerning the
suspension of Mr. Allman from the practice of Law, a copy of
the docket sheet, the recent orders of the Court and the
Order Appointing a Receiver and the Receiver's list of
attorneys willing to consider the Plaintiff's type of
case for representation. This material was sent by both
regular and certified mail and there was no indication the
mail was returned to the Court.
these circumstances, the Plaintiff was given fair notice of
the suspension of Mr. Allman and her need to take some
action. The record is clear the Plaintiff did not take action
by December 9, 2016 and has apparently since changed address
without notification to the Court. Service of Process has
never been accomplished and the Plaintiff has failed to
justify such failure to serve or to request additional time.
the Court is certainly sympathetic to the Plaintiff's
difficulties in hiring Mr. Allman to prosecute her case, the
fact remains the Plaintiff has taken no action since his
suspension and subsequent disbarment by either securing other
counsel or prosecuting her case pro se. As Judge
Campbell noted in the case of Smith v. Correction Corp.
of America, Middle District of Tennessee, No.
3:14-mc-00652, (DE 7) filed June 2, 2014 “an action is
subject to dismissal for want of prosecution where the
pro se litigant fails to comply with Court's
orders or engages in a clear pattern of delay.”
Gibbons vs. Asset Acceptance Corporation, 2006
Westlaw 3452521 at *1(SD Ohio November 29, 2006); see also
Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.
1996). “District Courts have the inherent power to sua
sponte dismiss an action for want of prosecution ‘to
manager their own affairs so as to achieve the orderly and
expeditious disposition of cases'”. Link v.
Wabash Railroad, 370 U.S. 626, 630-631 (1962).
in this case the Defendant who has never been served would be
prejudiced by now instituting a case that was filed almost
three (3) years ago.
reasons state above, the Magistrate Judge recommends this
case be dismissed without prejudice.
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