United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION
BRAMLETTE, UNITED STATES DISTRICT JUDGE.
cause is before the Court on the Report and Recommendation
(docket entry 18) of Magistrate Judge
Michael T. Parker, based on the plaintiff Jose de Paz
Lopez's failure to prosecute his Complaint. Magistrate
Judge Parker recommends that this action be dismissed without
March 28, 2017, the plaintiff moved to have the Court serve
the defendants with process. The Court denied that request on
April 19, 2017, on the basis that the plaintiff was not
proceeding in forma pauperis, and therefore the
Court and the U.S. Marshal's office had no obligation to
assist him with service of process. See Fed.R.Civ.P.
4(c); Local Rule 4.1(b)(“The United States Marshal does
not serve process in civil actions except on behalf of the
federal government, in actions proceeding in forma
pauperis, on writs of seizure and executions of
judgments, and when otherwise ordered by a federal
court.”); see also Whiting v. Alvarado, 2004
WL 527793, at *1-2 (N.D. Tex. Mar. 17, 2004)(denying
plaintiff's motion for service of process by U.S. Marshal
where plaintiff was not proceeding in forma
pauperis). Further, the Court reminded the plaintiff
that process was to be completed with 90 days of the filing
of the complaint in accordance with Federal Rule of Civil
Procedure 4(m). The plaintiff did not serve process as
ordered and his deadline to do so has long since passed.
Court issued a show cause order on June 8, 2017, which gave
the plaintiff until June 20, 2017, to show cause in writing
why this matter should not be dismissed for failure to serve
process and failure to prosecute. See Order (docket
entry 13). This order was returned to the Court on June 22,
2017, as the plaintiff was no longer located at his address
of record. See Mail Return (docket entry 14). On
June 30, 2017, the Court received a notice of change of
address, which provided an address that was already of
record. See Notice (docket entry 15). However, this
notice also appeared to indicate that the plaintiff had been
deported to El Salvador on May 26, 2017, and provided an
address in El Salvador. See Notice (docket entry
an abundance of caution, the Court issued a final order to
show cause on July 11, 2017, ordering the plaintiff to show
in writing, on or before August 10, 2017, why this matter
should not be dismissed for failure to serve process and
failure to prosecute. See Order (docket entry 16).
In the alternative, the plaintiff was ordered to complete
service of process and file proof thereof with the Court on
or before August 10, 2017. The plaintiff was also warned that
failure to show good cause as ordered or to timely complete
service of process and to file proof thereof by August 10,
2017, could result in the dismissal of this action without
further notice. See Order (docket entry 16). The
Order was mailed to the plaintiff's address of record and
the address in El Salvador. The plaintiff did not respond as
been almost one year since this case was filed, and the
plaintiff has not served process on the defendants nor
demonstrated good cause to justify his delay. Magistrate
Judge Parker recommends that this matter be dismissed without
to Federal Rule of Civil Procedure 41(b), a trial court has
discretionary authority to dismiss an action sua
sponte for the plaintiff's failure to prosecute or
comply with any order of the court. See Link v. Wabash
R.R. Co., 370 U.S. 626, 630 (1962); Larson v.
Scott, 157 F.3d 1030, 1031 (5th Cir. 1998).
The power of the courts “to invoke this sanction is
necessary in order to prevent undue delays in the disposition
of pending cases and to clear their calendars of cases that
have remained dormant because of the inaction or dilatoriness
of the parties seeking relief ... so as to achieve the
orderly and expeditious disposition of cases.”
Link, 370 U.S. at 629-31; see also Lopez v.
Aransas County Indep. Sch. Dist., 570 F.2d 541, 544
(5th Cir. 1978)(discussing trial court's Rule
41(b) discretionary authority).
addition, Rule 4 of the Federal Rules of Civil Procedure
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 ....” Fed.R.Civ.P. 4(m).
of this case is appropriate under Rule 4(m). The plaintiff has
failed to serve process in compliance with the Rule despite
several notices by the Court that such failure could result
in a dismissal, and he has failed to demonstrate good cause
to justify delay. See Hearron v. Nichols, 2006 WL
1791172, at *1 (S.D.Miss. June 5, 2006)(Report and
Recommendation, adopted by Order dated June 27, 2006).
Court shall therefore adopt the Report and Recommendation as
the findings and conclusions of this Court.
IT IS HEREBY ORDERED that the Report and Recommendation of
Magistrate Judge Michael T. Parker (docket entry
18) is ADOPTED as the findings and conclusions of
ORDERED that a Final Judgment of Dismissal without Prejudice
shall follow of even date herewith.