United States District Court, D. Nebraska
F. Rossiter, Jr. United States District Judge.
matter is before the Court on (a) the magistrate
judge's Findings And Recommendation (Filing No.
10) that this case be dismissed for failure of service and
want of prosecution, (b) plaintiff Cynthia Swaroff's
(“Swaroff”) Objection to Findings of Magistrate
(Filing No. 16), and (c) Swaroff's Motion to Enlarge Time
to Serve Defendant (Filing No. 17). For the reasons stated
below, the Motion to Enlarge Time is denied, the Objection is
overruled, and this case is dismissed, without prejudice,
pursuant to Federal Rule of Civil Procedure 4(m) and for lack
filed a Complaint (Filing No. 1) on May 31, 2017, challenging
the denial of Social Security disability benefits. At the
time of filing, Swaroff's counsel did not obtain a
summons from the Clerk of Court pursuant to Federal Rules of
Civil Procedure 4(b). Rule 4(m) requires service of a summons
and the complaint within ninety days of the date on which the
complaint is filed. No such service was made until September
25, 27, and 28, 2017.
August 30, 2017, Magistrate Judge Nelson issued an Order
(Filing No. 9) directing Swaroff to show cause why her case
should not be dismissed pursuant to Federal Rule of Civil
Procedure 4(m) or for want of prosecution.
did not respond to that show cause order. On September 19,
2017 (Filing No. 10), Magistrate Judge Nelson issued his
Findings and Recommendation and recommended the matter be
dismissed for failure of service and want of prosecution.
same day, but after the filing of the Findings and
Recommendation, Swaroff filed a Motion to Enlarge Time to
File Proof of Service (Filing No. 11). On that same date,
Swaroff filed a document “Proof of Service”
(Filing No. 12), which represented to the Court that summons
were variously sent to the defendant (and other necessary
entities) on September 5, 6, 7, and 8, 2017, also outside of
the ninety day period for service.
September 22, 2017, this Court denied Swaroff's motion
seeking the late filing of the September 19, 2017,
“Proof of Service” (Filing No. 12). In the Order,
this Court noted that summons were never requested nor were
they issued by the Clerk of Court. The Court also observed
that Swaroff's counsel never responded to the
magistrate's show cause order. Indeed, to date Swaroff
has never provided any statement of cause or explanation
relating to either the tardiness in service or the
misrepresentation to this Court relating to earlier service.
September 25, 2017, Swaroff filed a one-paragraph Objection
to Findings of Magistrate (Filing No. 16). Again, counsel
provides no explanation either for his tardiness or for
having mislead the Court regarding “service”
having been completed on September 5, 6, 7 and 8,
September 25, 2017, Swaroff filed a Motion to Enlarge Time to
Serve Defendant (Filing No. 17) and records show that summons
were issued on that same date (Filing No. 18) and that those
summons were returned executed on October 4, 2017 (Filing No.
19). Once again there is nothing in Swaroff's
“Motion to Enlarge Time to Serve Defendant”
(Filing No. 17), which provides any explanation or
4(m) of the Federal Rules of Civil Procedure provides in
pertinent part as follows:
If a defendant is not served within ninety 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 the 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.
Id. The issue here is that Swaroff has made no such
showing of good cause. The burden of proof of showing good
cause is on Swaroff.
the Court takes notice of the fact that the Complaint alleges
that the Action of Appeals Council on Request for Review is
dated March 16, 2016. Because any lawsuit must be filed
within sixty days of mailing of the final decision by the
Commissioner of Social Security, 42 U.S.C. § 405(g), the
filing of this lawsuit is untimely, and therefore no
prejudice to Swaroff due to dismissal is apparent.
of Swaroff's failure to timely effect service of this
matter, the complete failure of Swaroff to establish or even
attempt to establish cause for extending the deadline for
service, and given the prior ...