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Gaivehchi v. Bierman

United States District Court, N.D. Texas, Dallas Division

October 1, 2019

LEYLA GAIVEHCHI, Plaintiff,
v.
WILHELM BIERMAN, Field Office Director, U.S. Citizenship & Immigration Services, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         On April 23, 2019, Plaintiff Leyla Gaivehchi filed, through counsel, a Petition for Naturalization under 8 U.S.C. Sec. 1447(b) [Dkt. No. 1], invoking the Court's subject matter jurisdiction under Section 1447(b), 28 U.S.C. § 1361, and, alternatively, under the Administrative Procedure Act, 5 U.S.C. § 701 et seq.

         On August 1, 2019, United States District Judge Sam A. Lindsay referred her action to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b). See Dkt. No. 7.

         The next day, the Court entered an order regarding service:

Federal Rules of Civil Procedure 4(m) authorizes a district court to, after providing notice, dismiss a case sua sponte without prejudice for a plaintiff's failure to effectuate service on a defendant within 90 days of filing the complaint. See, e.g., Davis v. Bank of Am., NA, No. 3:12-cv-1036-M-BF, 2012 WL 4795591 (N.D. Tex. Oct. 9, 2012); see also Drgac v. Treon, No. H-07-4283, 2008 WL 4746984, at *1 (S.D. Tex. Oct. 27, 2008) (“A pro se plaintiff is entitled to notice before a district court dismisses an action, sua sponte, for failure to timely serve the defendants under Rule 4(m).... [But, a] plaintiff's pro se status and ignorance of the law do not constitute cause for his failure to effect service in compliance with the rules.” (citing Lindsey v. United States R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996); Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988))).
It is now some 100 days after Gaivehchi filed this action. And this order serves as the notice required by Rule 4. Accordingly, Gaivehchi must file a response to this order by September 3, 2019 that establishes both (1) good cause for the failure to timely and properly effect service and (2) good cause for the Court to extend the time for service for an appropriate, specified period. See Fed. R. Civ. P. 4(m). Failure to do so will result in a recommendation that this case be dismissed without prejudice.

Dkt. No. 8.

         It is now more than three weeks past that deadline, and Gaivehchi has failed to file the court-ordered response or otherwise contact the Court.

         The undersigned therefore enters these findings of fact, conclusions of law, and recommendation that, for the reasons stated below, the Court should dismiss this action without prejudice under Federal Rules of Civil Procedure 4(m) and 41(b).

         Legal Standards and Analysis

         I. Rule 4(m)

         Federal Rules of Civil Procedure 4(m) authorizes a district court to, after providing notice, dismiss a case sua sponte without prejudice for a plaintiff's failure to effectuate service on a defendant within 90 days of filing the complaint. See, e.g., Davis v. Bank of Am., NA, No. 3:12-cv-1036-M-BF, 2012 WL 4795591 (N.D. Tex. Oct. 9, 2012); see also Drgac v. Treon, No. H-07-4283, 2008 WL 4746984, at *1 (S.D. Tex. Oct. 27, 2008) (“A pro se plaintiff is entitled to notice before a district court dismisses an action, sua sponte, for failure to timely serve the defendants under Rule 4(m).... [But, a] plaintiff's pro se status and ignorance of the law do not constitute cause for his failure to effect service in compliance with the rules.” (citing Lindsey v. United States R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996); Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988))).

         Because Gaivehchi has not shown that she timely and properly effected service - or moved for an extension of time to do so, as allowed by the Court's August 2 order - and because the Court explicitly advised Gaivehchi that failure to do so will subject her action to dismissal under Rule 4(m), see ...


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