Summary
The Eastern District of New York adopted a magistrate judge’s Report and Recommendation and dismissed the action without prejudice under Federal Rule of Civil Procedure 4(m). The court found that Plaintiff failed to properly serve A. Duie Pyle Inc. within the required period, despite repeated orders and warnings, and directed the Clerk of Court to close the case.
Topics
Practice areas
Questions Presented
- Whether the district court should adopt an unobjected-to Report and Recommendation after reviewing it for clear error.
- Whether dismissal without prejudice was required under Federal Rule of Civil Procedure 4(m) because Plaintiff failed to properly serve A. Duie Pyle Inc. within 90 days and did not show good cause for the failure.
Holdings
- When no objections are filed after adequate notice, the district court reviews the magistrate judge's Report and Recommendation for clear error on the face of the record.
- An action must be dismissed without prejudice when a plaintiff fails to serve a defendant within 90 days, does not file proper proof of service despite notice and repeated opportunities, and fails to show good cause for the failure.
Key quotations
“Clear error is “found only when, upon review of the entire record, the [c]ourt is left with ‘the definite and firm conviction that a mistake has been committed.”” (II)
“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.” (II)
Factual background
Plaintiff filed an action concerning allegedly damaged valves transported by Defendants. Plaintiff filed an executed waiver of service for Ex-Works but submitted an invalid waiver for A. Duie Pyle because it was executed only by Plaintiff's counsel. Despite repeated orders and warnings directing Plaintiff to file proper proof of service, Plaintiff failed to do so by the Rule 4(m) deadline or by subsequent extended deadlines.
Procedural history
HDI Global Insurance Company filed an action seeking damages based on allegedly damaged valves shipped by the defendants. Ex-Works, Inc. was dismissed by stipulation, leaving A. Duie Pyle Inc. as the sole defendant. After Plaintiff failed to file proper proof of service despite repeated court orders and warnings, Magistrate Judge Taryn A. Merkl recommended dismissal without prejudice under Rule 4(m). The district court reviewed the unobjected-to recommendation for clear error, found none, adopted it in full, dismissed the action without prejudice, and directed the Clerk to close the case.