United States District Court, E.D. Pennsylvania
Milton Younge Judge.
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.
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.
Again, Plaintiff did not respond to the Show Cause Order.
following reasons, the Court will dismiss Plaintiff's
Complaint without prejudice pursuant to Federal Rule of Civil
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).
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.”
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.
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
foregoing reasons, the Court will dismiss Plaintiff's
Complaint without ...