United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
D. THALKEN, Magistrate Judge.
matter is before the court on the plaintiff's request for
an alias summons (Filing No. 15).
plaintiff filed the instant action on January 15, 2016,
naming Danny's Bar and Grill and Daniel J. Arcuri as
defendants. See Filing No. 1. The plaintiff sought summonses,
which were issued for both named defendants. See Filing No.
6. On March 24, 2016, the plaintiff filed a proof of service
indicating "Danny's Bar and Grill" was served
by a constable serving Linda Lenard on behalf of Danny's
Bar and Grill, on March 18, 2016. See Filing No. 7. On April
20, 2016, the Clerk of Court entered default against
Danny's Bar and Grill. See Filing No. 11. On May 18,
2016, the court set aside default in response to the motion
filed on behalf of Danny's Bar and Grill indicating
improper service Danny's Bar and Grill is a trade name
rather than an entity. See Filing Nos. 12 and 14. The court
gave the plaintiff until June 3, 2016, "to file with the
Clerk of Court evidence of proper service for Daniel J.
Arcuri and show cause why this case should not be dismissed
as against the defendants." See Filing No. 14.
plaintiff failed to respond to the court's order.
Instead, the plaintiff filed the instant request on June 7,
2016, seeking an alias summons from the Clerk of Court. See
Filing No. 15. The request admits the plaintiff failed to
timely serve Mr. Arcuri. Id. Nevertheless, the
plaintiff fails to provide justification for failure to
timely and diligently serve the defendants.
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 Eighth Circuit has long held dismissal
for failure to prosecute is well within the court's
discretion. See Roberts v. Missouri Div. Of
Employment, 636 F.2d 249, 250 (8th Cir. 1980). Dismissal
without prejudice is appropriate when service of the summons
and complaint has not been made upon the defendant within the
statutory period of days after filing of the complaint. See
Fed.R.Civ.P. 4(m); Bullock v. United States, 160
F.3d 441, 442 (8th Cir. 1998) (per curiam) (affirming
district court's dismissal without prejudice under Rule
4(m)); see also Carmona v. Ross, 376 F.3d 829, 830
(8th Cir. 2004) (dismissal affirmed where plaintiff given
opportunity, failed to cure defect).
remains the plaintiff's duty to go forward in prosecuting
the case. Pursuant to NECivR 41.2: "At any time, a case
not being prosecuted with reasonable diligence may be
dismissed for lack of prosecution." Further,
Fed.R.Civ.P. 4(m) establishes a 90-day time limit for service
of process on defendants in a civil case, absent a showing of
good cause. The court ordered the plaintiff to make a showing
of his intent to proceed with this action or be subject to
involuntary dismissal. The plaintiff did not appropriately
respond to the court. The deadline for service of process
expired. The plaintiff's failure to timely prosecute his
claims or show good cause exists for an extension of the
service deadline subjects the plaintiff to dismissal of the
complaint. See NECivR 41.2. Similarly, the plaintiff's
failure to comply with this court's order subjects the
plaintiff to dismissal of the complaint.
Eighth Circuit explained the court's discretion to
dismiss for failure to prosecute as follows:
The Federal Rules of Civil Procedure permit dismissal with
prejudice "[f]or failure of a plaintiff to prosecute or
to comply with these rules or any order of court."
Fed.R.Civ.P. 41(b). Despite the breadth of this language,
however, we have recognized that dismissal with prejudice is
an extreme sanction that should be used only in cases of
willful disobedience of a court order or where a litigant
exhibits a pattern of intentional delay. This does not mean
that the district court must find that the appellant acted in
bad faith, but requires "only that he acted
intentionally as opposed to accidentally or
Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th
Cir. 2000) (citations omitted). The Eighth Circuit continued,
noting the district court did not err in dismissing the
action with prejudice after finding the plaintiff
"engaged in a persistent pattern of intentional delay by
willfully disregarding court orders and violating the Federal
Rules." Hunt, 203 F.3d at 527-28. However, the
Eighth Circuit has also noted "[d]ismissal with
prejudice is an extreme sanction and should be used only in
cases of wilful disobedience of a court order or...
persistent failure to prosecute a complaint." In re
Popkin & Stern, 196 F.3d 933, 938 (8th Cir. 1999)
(citations omitted); see Siems v. City of
Minneapolis, 560 F.3d 824, 826 (8th Cir. 2009). The
court must initially consider "the egregiousness of the
plaintiff's conduct" and, secondarily, "the
adverse effect of the plaintiff's conduct on the
defendant and on the administration of justice."
Otis v. Knudsen, No. 05-489, 2008 WL 4949157, at *3
(D. Minn. Nov. 17, 2008) (quoting Wright v. Sargent,
869 F.2d 1175, 1176 (8th Cir. 1989)). Moreover, Federal Rule
of Civil Procedure 16(f) authorizes sanctions "[i]f a
party... (a) fails to appear at a scheduling or other
pretrial conference;... or (c) fails to obey a scheduling or
other pretrial order." In such circumstances, "the
court may issue any just orders, including those authorized
by Rule 37(b)(2)(A)(ii)-(vii)" for sanctions.
case, the plaintiff has failed to serve the defendants. The
plaintiff has not been diligent in accomplishing service. The
deadline for service of process expired. The plaintiff failed
to maintain communication with the court. Such failure has
already contributed to a delay in progressing this case to
resolution. The plaintiff failed to comply with the
court's order. The plaintiff has acted in a manner that
interferes with the orderly processes of this court. Further,
the undersigned magistrate judge ...