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Frey v. Ethos Data Management, Inc.

United States District Court, E.D. Pennsylvania

December 16, 2019

JON FREY, Plaintiff
v.
ETHOS DATA MANAGEMENT, INC., Defendant

          MEMORANDUM

          John Milton Younge Judge.

         I. INTRODUCTION

         On April 5, 2019, Plaintiff John Frey filed a Complaint in this Court against Defendant Ethos Data Management, Inc. (ECF No. 1.) The Complaint alleges that Defendant's robocalls delivered a prerecorded telemarketing message without Plaintiff's express consent, in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S. §§ 227, et seq.

         On April 5, 2019, as reflected in the Docket, the Clerk of Court for the Eastern District of Pennsylvania issued a Summons for the named Defendant. However, Plaintiff has failed to file proof of service of the Summons and Complaint on the Defendant. On October 11, 2019, the undersigned's civil deputy docketed a notice indicating that the Plaintiff had until November 12, 2019, to properly serve the Summons and Complaint upon the Defendant or risk possible dismissal of this action. (ECF No. 4.) Plaintiff did not respond at all to the notice. Thereafter, on November 19, 2019, the Court issued a Show Cause Order requiring Plaintiff to submit a letter to the Court explaining whether there was good cause for his failure to serve Defendant. (ECF No. 5.)[1] Again, Plaintiff did not respond to the Show Cause Order.

         For the following reasons, the Court will dismiss Plaintiff's Complaint without prejudice pursuant to Federal Rule of Civil Procedure 4(m).

         II. DISCUSSION

         Federal Rule of Civil Procedure 4(m) provides:

If 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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m).

         The Rule requires a court to extend time for service if good cause is shown and, absent a showing of good cause, permits a court to dismiss the case without prejudice or to extend time for service where other factors warrant extending the time. Petrucelli v. Bohringer & Ratzinger, GMBH Ltd., 46 F.3d 1298, 1305-07 (3d Cir. 1995); see also Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997). In Petrucelli, the Third Circuit held that the analysis under Rule 4(m) involves a two-part process. Petrucelli, 46 F.3d at 1305. “First, the district courts should determine whether good cause exists for an extension of time. If good cause is present, the district court must extend time for service and the inquiry is ended. If, however, good cause does not exist, the court may in its discretion decide whether to dismiss the case without prejudice or extend time for service.” Id.

         Here, Plaintiff filed his Complaint on April 5, 2019. Accordingly, Defendant should have been served by July 5, 2019. By this date, Plaintiff failed to file proof of service. Thereafter, the Court, in the October 11, 2019 notice and the November 19, 2019 Show Cause Order, gave Plaintiff ample opportunity to show good cause for his failure to serve the Summons and Complaint on Defendant. Plaintiff did not respond to the notice or the Show Cause Order. Consequently, Plaintiff has failed to show good cause under Federal Rule of Civil Procedure 4(m) for failure to serve.

         In addition, by failing to respond to the Court's Show Cause Order, Plaintiff has failed to advance other reasons which, although not enough by themselves to establish good cause, would warrant an extension of time to serve the Summons and Complaint. Therefore, pursuant to Federal Rule of Civil Procedure 4(m), the Court will dismiss the Complaint without prejudice.[2]

         III. CONCLUSION

         For the foregoing reasons, the Court will dismiss Plaintiff's Complaint without ...


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