United States District Court, M.D. Florida, Tampa Division
DAVID PRO'CTOR UNITED STATES DISTRICT JUDGE
initiated this action on November 3, 2016. (Doc. 1). Federal
Rule of Civil Procedure 4(m) requires a plaintiff to serve a
defendant within ninety days of filing the complaint.
Plaintiff failed to do so. Nonetheless, on February 3, 2017,
the court allowed Plaintiff until March 3, 2017, to move for
an extension of time to serve the Defendants. (Doc. 8). In
response to the court's February 3 Order, Plaintiff
explained why he did not serve Defendants within the time
allowed under Rule 4, and asked for more time to do so. (Doc.
10). On February 14, 2017, the court allowed Plaintiff until
March 31, 2017, to effect service on Defendants. (Doc. 17).
no evidence of service on Defendants had been filed with the
court, on April 6, 2017, the court ordered Plaintiff, on or
before April 28, 2017, to show cause why this case should not
be dismissed for his failure to serve defendants within the
extended time allowed to effect service. (Doc. 18).
In its April 6, 2017 Order, the court specifically warned
that “FAILURE TO SHOW GOOD CAUSE MAY RESULT IN
DISMISSAL OF PLAINTIFF'S CLAIMS FOR FAILURE TO
PROSECUTE.” (Doc. 18 at 2) (emphasis in original).
of process is a jurisdictional requirement: a court lacks
jurisdiction over the person of a defendant when the
defendant has not been served.” Pardazi v. Cullman
Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990). Service
of process in the federal courts is generally governed by
Rule 4 of the Federal Rules of Civil Procedure, which
provides, in relevant part:
A summons must be served with a copy of the complaint. The
plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m) and must furnish
the necessary copies to the person who makes service.
Fed. R. Civ. P. 4(c)(1). In addition, Rule 4(m) of the
Federal Rules of Civil Procedure provides the time limit for
If a defendant is not served within 90 days after the
complaint is filed, the court- on motion or 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. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). The person effecting service is then
required to file proof of service with the
court. Fed.R.Civ.P. 4(1)(1). Rule 4(1)(1)
provides that “[u]nless service is waived, proof of
service must be made to the court. Except for service by a
United States marshal or deputy marshal, proof must be made
by the server's affidavit.” Fed.R.Civ.P. 4(1)(1).
the date of this order, Plaintiff has had 180 days, or twice
as long as the time allowed under Rule 4, to serve
defendants. However, there is still no proof of service on
any defendant, nor has there been a showing of good cause for
the failure to effect service. Plaintiff has failed to (1)
effect service under Rule 4(m), (2) comply with this
court's orders, and (3) otherwise prosecute the case.
Rule 41(b) “authorizes a district court to dismiss a
complaint for failure to prosecute or failure to comply with
a court order or the federal rules.” Gratton v.
Great Am. Communications, 178 F.3d 1373, 1374 (11th Cir.
1999); see also Link v. Wabash Railroad Co., 370
U.S. 626, 630-631 (1962) (holding district courts have the
power to sua sponte dismiss a cause of action for
failure to prosecute); Coleman v. St. Lucie County
Jail, 433 Fed.App'x. 716, 718 (11th Cir. 2011)
(“The district court may dismiss a claim if the
plaintiff fails to prosecute it or comply with a court
order.”); Betty K. Agencies, Ltd. v. M/V
MONADA, 432 F.3D 1333, 1337 (11th Cir. 2005) (“The
Supreme Court also has held that'[t]he authority of a
court to dismiss sua sponte for lack of prosecution
has generally been considered an “inherent power,
” governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs.
Although the plain language of Rule 41(b) suggests that a
court may act pursuant to that Rule only when dismissing upon
the motion of the defendant, and acts only on its inherent
authority when dismissing sua sponte, many of our
decisions elide this neat distinction.” (internal
citation omitted)); Brown v. Tallahassee Police
Dept., 205 Fed.App'x. 802, (11th Cir. 2006)
(“The district court's ‘power to dismiss is
an inherent aspect of its authority to enforce its orders and
ensure prompt disposition of lawsuits.' The court may
dismiss an action sua sponte under Rule 41(b) for
failure to prosecute or failure to obey a court order.”
(citations omitted)); World Thrust Films, Inc. v.
International Family Entertainment, Inc., 41 F.3d 1454,
1456 (11th Cir. 1995) (“‘A district court has
authority under Federal Rule[ ] of Civil Procedure 41(b) to
dismiss actions for failure to comply with local
the court is fully aware that Plaintiff is unrepresented, and
is sympathetic to the fact that he does not have the benefit
of counsel. In fact, Plaintiff has been allowed additional
time to comply with the court's orders and effect service
in this case. While sympathetic, the court concludes that
Plaintiff has had ample opportunity to comply with Rule 4(m)
but failed to do so.
case is due to be dismissed without prejudice. A separate
order will be entered.