You're viewing Docket Item 5 from the case . View the full docket and case details.

Download this document:




Case 1:12-cv-00432-LTS-AJP Document 5 Filed 06/05/12 Page 1 of 3

[NOT FOR PUBLICATION]

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------- x

USDCSDNY
DOCUMENT

:-CTRONICALLY FILED

I

CHRISTOPHER WALKER,

Plaintiff,

-against-

LINKLA TERS LLP,

Defendant.

12 Civ. 0432 (LTS) (AJP)

REPORT AND RECOMMENDATION

-------------------------------------x

ANDREW J. PECK, United States Magistrate Judge:


To the Honorable Laura Taylor Swain, United States District Judge:


Plaintiffs complaint in this action was filed on January 18, 2012. (Dkt. No.1:

CompI.)

Rule 4(m) ofthe Federal Rules of Civil Procedure provides:

Time Limit for Service. If a defendant is not served within 120 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. But ifthe plaintiff shows good cause for the failure,
the court must extend he time for service, for an appropriate period ....

By Order dated January 30,2012, I advised plaintiff that ifthe complaint was not properly served

within 120 days under Rule 4(m), the action would be dismissed. (Dkt. No.3: 1130/12 Order.) I

also directed plaintiff to provide my chambers with a courtesy copy of the proof of service. iliL)l'

!I

The January 30,2012 Order was sent to plaintiff by both regular and certified mail. The
(continued ... )

Case 1:12-cv-00432-LTS-AJP Document 5 Filed 06/05/12 Page 2 of 3

2

Plaintiff has not provided my chambers with proof of service on defendants, and a

review ofthe Court's docket sheet for this action discloses that there is no affidavit ofservice on file

with the Clerk's Office. The United States Marshal's Office has informed my chambers that they

have not received the necessary papers from plaintiff for service.

More than 120 days having passed from the filing of the complaint, and the Court

having advised plaintiff of his obligations under Fed. R. Civ. P. 4(m), and plaintiffs time to serve

having expired ",jth no action by plaintiff, and there being no indication that plaintiff has had the

complaint served on defendants, I recommend that the Court dismiss plaintiffs complaint without

prejudice for failllre to timely serve it pursuant to Fed. R. Civ. P. 4(m). See,~, Thompson v.

Maldonado, 309 F.3d 107, 110 (2d Cir. 2002).

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(I) and Rule 72(b) of the Federal Rules of Civil

Procedure, the parties shall have fourteen (14) days from service of this Report to file written

objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be

filed with the Clerk ofthe Court, with courtesy copies delivered to the chambers ofthe Honorable

Laura Taylor Swain, 500 Pearl Street, Room 755, and to my chambers, 500 Pearl Street, Room

1370. Any requests for an extension of time for filing objections must be directed to Judge Swain

(with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those

objections forpufposes ofappeal. Thomas v. Am, 474 U.S. 140,106 S. Ct. 466 (1985); IUE AFL­

1!

( ... continued)
regular mail was not returned; the certified mail copy was returned with a Post Office label
that it was "not deliverable as addressed/unable to forward."

Case 1:12-cv-00432-LTS-AJP Document 5 Filed 06/05/12 Page 3 of 3

3

CIO Pension Fund v. Herrmann, 9 FJd 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115

S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298,

,

300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Sec'y ofHealth & Human

Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55,57-59 (2d Cir. 1988);

McCarthy v. Manson, 714 F.2d 234,237-38 (2d Cir. 1983); 28 U.S.c. § 636(b)(1); Fed. R. Civ. P.

72.

Dated:

New York, New York
June 5,2012

Respectfully submitted,

Andrew J. Peck
United States Magistrate J dge

Copies to:

Christopher Walker (Regular & Certified Mail)
Judge Laura Taylor Swain