Summary
The United States Magistrate Judge recommends dismissing Kristen Erwin’s action against the Defense Health Agency without prejudice for failure to prosecute and failure to comply with court orders. The recommendation is based on plaintiff’s repeated failure to properly serve the defendant and failure to respond to the third order to show cause.
Topics
Practice areas
Questions Presented
- Whether the action should be dismissed without prejudice for failure to prosecute and failure to comply with the court's orders requiring proper service of process.
Holdings
- Because plaintiff failed to complete proper service despite repeated instructions and failed to respond to the third order to show cause, dismissal without prejudice was warranted under Federal Rule of Civil Procedure 41(b) and Local Rule 110.
Key quotations
“Because this case cannot move forward without plaintiffs participation and the successful service of process upon defendant, the court finds the factors weigh in favor of dismissal.” (at 2)
“Therefore, IT IS HEREBY RECOMMENDED that this action be dismissed, without prejudice, for lack of prosecution and for failure to comply with the court’s order.” (at 2)
Factual background
Plaintiff did not timely complete service of process on the defendant. Her subsequent service documents were improperly completed or otherwise inadequate despite repeated instructions from the court. Plaintiff failed to respond to the third order to show cause, and the action had been pending for nearly eleven months without successful service.
Procedural history
Plaintiff filed the action on August 7, 2024, paid the filing fee, and was directed to complete service within 90 days. After untimely and defective service attempts, the court issued three orders to show cause and provided instructions for proper service. Plaintiff failed to respond to the third order to show cause, leading the magistrate judge to recommend dismissal without prejudice under Federal Rule of Civil Procedure 41(b) and Local Rule 110.