United States District Court, N.D. Florida, Tallahassee Division
ZEBULUN L. MCCRIMAGER, Plaintiff,
BRODERIC ROBERSON and NICHOLAS JONES, Defendants.
REPORT AND RECOMMENDATION
MICHAEL J. FRANK, UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiff's motion to
dismiss Defendant Nicholas Jones from this civil action.
(Doc. 63). In support of his motion, Plaintiff states that he
does not wish to proceed with his claim against Defendant
Jones because Jones has not been served yet and Plaintiff
does not wish to prolong the case.
third amended complaint named two Defendants: Defendant
Roberson and Defendant Jones. Defendant Roberson was
successfully served and filed an answer. The undersigned
issued a case management order directing discovery to be
completed by July 31, 2019. (Doc. 46). Despite several
attempts from the United States Marshals Service to serve
Defendant Jones, service on Jones was never accomplished.
Plaintiff's motion appears to be a request to voluntarily
dismiss the claim against Defendant Nicholas Jones under Rule
41(a) of the Federal Rules of Civil Procedure, the Eleventh
Circuit has held that Rule 41 does not authorize the
dismissal of merely a single party. Perry v. Schumacher
Group of Louisiana, 891 F.3d 954, 958 (11th Cir. 2018)
(citing Berthold Types Ltd. v. Adobe Sys. Inc., 242
F.3d 772, 777 (7th Cir. 2001)); Phillip Carey Mfg. Co. v.
Taylor, 286 F.2d 782, 785 (6th Cir. 1961); Harvey
Aluminum, Inc. v. Am. Cyanamid Co., 203 F.2d 105, 108
(2d Cir. 1953). Rule 41 provides a mechanism to dismiss an
“action” and not merely a single defendant.
Perry, 891 F.3d at 958. The Eleventh
Circuit, however, noted that “there are multiple ways
to dismiss a single claim without dismissing an entire
provides one such mechanism. Rule 4 states in relevant part:
“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.” Fed.R.Civ.P. 4(m).
Plaintiff's amended complaint was filed on December 3,
2018. More than 90 days have been passed since
the filing of the amended complaint, and, despite diligent
efforts by the Marshals Service, Defendant Jones has not been
a pro se plaintiff, proceeding in forma
pauperis, is entitled to rely on the Marshals Service to
effect service. Rance v. Rocksolid Granit USA, Inc.,
583 F.3d 1284, 1288 (11th Cir. 2009) (quoting Fowler v.
Jones, 899 F.2d 1088, 1095 (11th Cir. 1990)). A court
generally may not sua sponte dismiss a defendant for
lack of service unless the court finds that the Marshals
Service has made a “reasonable effort” to locate
the Defendant. Richardson v. Johnson, 598 F.3d 734,
740 (11th Cir. 2010).
the Marshals Service attempted to serve Defendant Jones at
least three different ways: (1) by sending service documents
to Defendant Jones at his last known place of employment,
by securing a waiver of service by sending the documents to
Jones' last known address, and (3) by attempting personal
service at Defendants Jones' last known address. (Docs.
40, 53, 62). The Marshals Service has taken reasonable steps
to locate and serve Defendant Jones. Additionally, Plaintiff
is seeking to dismiss this action against Defendant Jones.
Therefore, dismissing the case with respect to Defendant
Jones will not cause Plaintiff any prejudice.
reason set forth above, the undersigned respectfully
(1) Plaintiff's Motion to dismiss the case against
Defendant Jones be GRANTED, pursuant to Rule
4(m) of the Federal Rules of Civil Procedure.
(2) The clerk of court be directed to modify the docket to
reflect that the only remaining Defendant is Broderic