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Nicholls v. BNCCORP, Inc.

United States District Court, M.D. Pennsylvania

November 21, 2014

JAMES NICHOLLS, et al., Plaintiffs,
v.
BNCCORP, INC., et al., Defendants

James H. Nicholls, Plaintiff, Pro se, York, PA.

Jean M. Nicholls, Plaintiff, Pro se, York, PA.

Martin C. Carlson, United States Magistrate Judge. (Chief Judge Conner).

REPORT AND RECOMMENDATION

Martin C. Carlson, United States Magistrate Judge.

I. Statement of Facts and of the Case

This is a civil case filed by the plaintiff, who is proceeding pro se, on June 26, 2014. (Doc. 1.) Presently the record does not appear to reflect valid service of the complaint upon the defendants. See Rule 4(j)(2), F. R. Civ. P. 120 days have elapsed since the complaint was filed without proof of proper service of the complaint. Under Rule 4(m) of the Federal Rules of Civil Procedure the court may dismiss a complaint without prejudice if more than 120 days have passed since the filing of the complaint without proper service of that complaint upon the defendant.

Since this case appeared to be subject to dismissal under Rule 4(m), on October 24, 2014, we entered an order (Doc. 4.), which placed the plaintiff on notice of this failure to make proper service and directed the plaintiff to show cause by November 7, 2014, why this matter should not be dismissed without prejudice for failure to affect proper service of the complaint. Despite this notice, the plaintiff has not responded to the Court's show cause order, or taken steps to perfect service of process in this case. Accordingly, for the reasons set forth below, it is recommended that the complaint be dismissed.

II. Discussion

A. Rule 4 Calls For Dismissal of This Complaint With Respect to Defendant Benedict

Dismissal of this complaint is warranted here. Simply put, the failure to properly serve this complaint now compels this outcome under the Federal Rules of Civil Procedure. In particular, this result is mandated by Rule 4 of the Federal Rules of Civil Procedure which prescribes the method by which service can be made, and describes how a party must demonstrate proof of service on the record. See F.R. Civ. P., Rule 4(a)-(l). Rule 4 also sets time limits for service, and prescribes the sanction of dismissal for the failure to make proper and timely service, stating as follows:

(m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action . . . against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

F. R.Civ. P., Rule 4(m).

The language of Rule 4(m) is both clear and mandatory. Where there is an unjustified and unexcused failure to timely serve a complaint the court " must dismiss the action." As a general rule " the party asserting the validity of service bears the burden of proof on that issue. See 4A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1083 (1987)." Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993). When the plaintiff fails to carry this burden of proof on the issue of proper and timely service, consistent with Rule 4(m)'s mandate that the " court-- on motion or on its own after notice to the plaintiff-- must dismiss the action, " dismissal of the case is entirely appropriate. Indeed, when a plaintiff does not show good cause for a failure to serve; Beckerman v. Susquehanna Township Police, 254 F.App'x 149, 154 (3d Cir. 2007), or fails to make service, despite ...


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