United States District Court, S.D. Mississippi, Eastern Division
REPORT AND RECOMMENDATION
Michael T. Parker United States Magistrate Judge.
MATTER is before the Court, sua sponte, upon
Plaintiff's failure to comply with orders of this Court.
After reviewing the record, the undersigned recommends that
this action be dismissed without prejudice as to Arrests.org.
filed his Complaint  against Defendant Craig Robert Wiggen
and Defendant Arrests.org on January 18, 2019 alleging they
had defamed him, intentionally inflicted emotional distress,
put him in a false light, and misappropriated his name and
likeness for commercial gain. Plaintiff was granted in
forma pauperis status on January 23, 2019 and the Court
directed the United States Marshal Service to serve process
on Defendant Wiggen. Order , . The Court did not direct
service on Arrests.org because Plaintiff had not provided a
name or address for an agent for service of process and
ordered Plaintiff to respond with such information by
February 15, 2019. Order .
responded with a name and address of an individual in
Virginia, but it remained unclear if this was the agent for
service of process for Arrests.org or if Arrests.org was an
entity that could be sued. Resp. . Plaintiff then moved to
serve Arrests.org through email or Rmail. Mot. , .
The Court denied these motions finding that service via the
internet not was appropriate and that Plaintiff had failed to
provide the Court with the necessary information to serve
Arrests.org. Order . The Court again directed Plaintiff
to provide a physical address and a name for an agent for
service of process for Arrests.org by May 31, 2019.
responded on May 30, 2019 providing an address for an LLC in
Saint Kitts and Nevis in the Caribbean. Resp. . Plaintiff
claims it is the alleged owner or agent of Arrests.org.
Id. Based on this limited information the Court,
again, did not direct the United States Marshal Service to
12, 2019, the Court directed Plaintiff to show cause why this
action should not be dismissed against Arrests.org for
Plaintiff's failure to comply with the Court's orders
and failure to provide a name and address for an agent for
service of process. Order . Plaintiff responded on June
25, 2019, stating that the address of the LLC in Saint Kitts
and Nevis is where he believes some of the website's
activity occurs and where the computer server is located that
runs the website. Resp. . This still does not provide the
Court with the necessary information to serve process on
Arrests.org, nor does it establish whether Arrests.org is
anything more than a website domain or an entity which can
sue or be sued.
courts have the authority to dismiss actions for a
plaintiff's failure to prosecute. See Fed. R.
Civ. P. 41(b). A motion to dismiss from the defendant is not
necessary, a court may act on its own initiative to clear its
docket of dormant cases. Link v. Wabash R. Co., 370
U.S. 626, 630 (1962). To dismiss a case for failure to
prosecute there must be “a clear record of delay or
contumacious conduct and the district court must have
expressly found that no lesser sanction would suffice to
prompt diligent prosecution.” Raborn v. Inpatient
Mgmt. Partners Inc., 278 Fed.Appx. 402, 404 (5th Cir.
2008). There must also be an aggravating factor such as
“(1) the delay was caused by the plaintiff, as opposed
to her attorney; (2) the defendant suffered actual prejudice;
(3) the delay was caused by intentional conduct.”
Id. at 404-405 (citing Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
is proceeding in forma pauperis in this matter.
See Order . “Special rules govern the
procedure for service of process in cases involving in forma
pauperis plaintiffs….” Lindsey v. U.S. R.R.
Retirement Bd., 101 F.3d 444, 446 (5th Cir. 1996). 28
U.S.C. § 1915(d) provides that “[t]he officers of
the court shall issue and serve all process, and perform all
duties in [in forma pauperis] cases.” The in forma
pauperis plaintiff must take reasonable steps to
identify the defendants. Lindsey, 101 F.3d at 446.
Proper service must be made within 120 days of filing the
complaint or the action is subject to dismissal without
prejudice by the district court after notice to the
plaintiff. Fed.R.Civ.P. 4(m). “But if the plaintiff
shows good cause for the failure, the court must extend the
time for service for an appropriate period.”
than 120 days have elapsed since Plaintiff filed this lawsuit
and Arrests.org has yet to be served, nor has Plaintiff given
the Court any indication or clarification as to the legal
status of “Arrests.org.” The Court has repeatedly
directed Plaintiff to provide a name for an agent for service
of process for Arrests.org and a physical address where the
agent may be served. Order , , . While Plaintiff
has responded to the Court, he has yet to provide the
necessary information to serve process upon Arrests.org. The
Court will direct the United States Marshal Service to serve
Arrests.org, but that can only be accomplished if Plaintiff
provides the necessary information.
not the Court's responsibility to discover a
defendant's address or agent for service of process or to
identify the defendant. Plaintiff's failure to comply
with the Court's many orders is not attributable to any
attorney, but his own conduct. The undersigned, therefore,
recommends that this action be dismissed without prejudice
against Arrests.org based on Plaintiff's repeated failure
to comply with this Court's orders.
OF RIGHT TO OBJECT
accordance with the rules and 28 U.S.C. § 636(b)(1), any
party within fourteen days after being served a copy of this
recommendation, may serve and file written objections to the
recommendations, with a copy to the District Judge, the
Magistrate Judge and the opposing party. The District Judge
at the time may accept, reject or modify in whole or part,
the recommendations of the Magistrate Judge, or may receive
further evidence or recommit the matter to this Court with
instructions. The parties are hereby notified that failure to
file written objections to the proposed findings,
conclusions, and recommendations contained within this report
and recommendation within fourteen days after being served
with a copy shall bar that party, except upon grounds of
plain error, from attacking on ...