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Ozoroski v. Maue

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


March 19, 2009

STANLEY N. OZOROSKI, PLAINTIFF
v.
DR. FREDERICK R. MAUE, ET AL., DEFENDANTS

The opinion of the court was delivered by: Judge Conner

ORDER

AND NOW, this 19th day of March, 2009, upon consideration of plaintiff's letter (Doc. 66), which purports to show good cause excusing plaintiff's failure to serve process upon defendants Dr. John S. Reidell ("Reidell") and Dr. David E. Rowe ("Rowe"), and it appearing that plaintiff has been unable to locate Reidell and Rowe, that plaintiff claims "due diligence was performed to try to locate these defendants,"*fn1 (id.), but that far more than 120 days have passed since the filing of plaintiff's complaint, see FED. R. CIV. P. 4(m) ("If a defendant is not served within 120 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time."), and the court concluding that plaintiff's attempt to show good cause is insufficient to merit an enlargement of time to serve process, see MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (equating "'good cause' with the concept of 'excusable neglect'"); Cunningham v. New Jersey, 230 F.R.D. 391, 393 (D.N.J. 2005) ("In determining whether there is good cause for the extension of the time for service under Rule 4(m), district courts should consider:

(1) reasonableness of plaintiff's efforts to serve (2) prejudice to the defendant by lack of timely service and (3) whether plaintiff moved for an enlargement of time to serve."), that plaintiff has not moved to enlarge the time allotted for service, and that a discretionary extension of time is not warranted, see Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997) ("If good cause does not exist, the district court must consider whether to grant a discretionary extension of time."), it is hereby ORDERED that pursuant to Rule 4(m), defendants Dr. John S. Reidell and Dr. David E. Rowe are DISMISSED from the above-captioned matter without prejudice.

CHRISTOPHER C. CONNER United States District Judge


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