United States District Court, N.D. Texas, Dallas Division
to U.S. Magistrate Judge 
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
on the relevant filings and applicable law, the case should
be DISMISSED for failure to serve the
defendants within 90 days.
24, 2019, the plaintiffs filed this pro se case
against the defendants and paid the filing fee. (See
doc. 3, receipt number DS117081.) Their statement of the
claim simply states, “This case involves housing
discrimination and breach of contract.” (See
doc. 3 at 7.) By order dated June 25, 2019, they were
expressly advised of their duty to timely serve the
Because they paid the fee, the plaintiffs are now responsible
for serving each defendant with a summons and a copy of the
complaint in this case as provided by Rule 4(c) of the
Federal Rules of Civil Procedure. If each defendant is not
served within 90 days after the filing of the complaint, the
action is subject to dismissal without prejudice.
See Fed. R. Civ. P. 4(m). In addition, Fed.R.Civ.P.
4(1)(1) requires Plaintiffs to file proof of service with the
Court unless service is waived. This proof must consist of
“the server's affidavit” if service was not
effected by the United States Marshal or a deputy marshal.
Id. If the plaintiffs do not file a valid return of
service or otherwise show that each defendant was properly
served, this action may be dismissed.
(See doc. 5.) The order also directed the clerk to
mail the plaintiffs summons forms and a copy of Rule 4 of the
Federal Rules of Civil Procedure. (Id.) The docket
reflects that a summons form was served with the order as
well as a copy of Rule 4. (See id.)
plaintiffs failed to file a valid return of service on the
defendants within 90 days of the filing of the complaint. By
order dated October 21, 2019, they were directed to either
file a valid return of service, or show cause in writing why
service could not be made on the defendants, no later than
November 4, 2019. (See doc. 13.) The order expressly
stated that if the plaintiffs failed to comply with the
order, dismissal of the case would be recommended without
further notice. On November 4, 2019, the plaintiffs filed
responses simply stating that they “never received
subpoena's for this case.” (See docs. 13,
order dated November 6, 2019, the Court found that the
plaintiffs' responses reflected no effort by them to
comply with the order to show cause, such as by contacting
the Clerk's Office to request summons forms, and no
reason why this case should not be dismissed for failure to
serve the defendants. (See doc. 16 at 2.) Although
it found that this action was subject to dismissal for
failure to file a valid return of service under Fed.R.Civ.P.
4(m), it nevertheless provided the plaintiffs another
opportunity to serve the defendants. It ordered them to file
a valid return of service, or show good cause in writing why
service could not be made on each defendant, no later than
5:00 p.m. on November 18, 2019. It also directed the
Clerk's Office to mail the plaintiffs a summons form for
each defendant and another copy of Rule 4, and the docket
reflects that they were mailed to the plaintiffs.
(See docs. 16, 17.)
November 20, 2019, the plaintiffs filed a return of service
as to only three of the five defendants, and each return
indicated that one of the plaintiffs had personally mailed
the summonses to those three defendants via certified mail,
return receipt requested, on November 15, 2019. (See
doc. 18.) As of this date, the plaintiffs have still not
filed any return of service as to the other two defendants,
Ray McDonald, and Charles C. Guimm, III, or shown cause in
writing for their failure to do so.
they paid the fee, the plaintiffs were responsible for
serving each defendant with a summons and a copy of the
complaint case as provided by Rule 4(c) of the Federal Rules
of Civil Procedure. They were required to make proper service
on the defendants within 90 days of filing a complaint.
See Fed. R. Civ. P. 4(m). They were also required to
file proof of service unless service was waived. See
Fed. R. Civ. P. 4(1)(1). Proof consists of “the
server's affidavit” if service was not effected by
the United States Marshal or a deputy marshal. Id.
proper service is not made within 90 days of filing a
complaint, an action is subject to sua sponte
dismissal, without prejudice. Fed.R.Civ.P. 4(m). Dismissal is
not proper “if the plaintiff shows good cause for the
failure” to properly effect service, however.
Id. In the Fifth Circuit, courts must allow
additional time for service if a plaintiff can establish good
cause. Millan v. USAA General Indem. Co., 546 F.3d
321, 325-26 (5th Cir. 2008)(citing Thompson v.
Brown, 91 F.3d 20, 21 (5th Cir.1996)). “To
establish ‘good cause' the plaintiff must
demonstrate at least as much as would be required to show
excusable neglect, as to which simple inadvertence or mistake
of counsel or ignorance of the rules usually do not
suffice.” Lindsey v. U.S. R.R. Retirement Bd.,
101 F.3d 444, 446 (5th Cir. 1996) (quoting Peters v.
U.S., 9 F.3d 344, 345 (5th Cir. 1993)). Courts also
typically require “some showing of good faith on the
part of the party seeking an enlargement and some reasonable
basis for noncompliance within the time specified.”
Lambert v. United States, 44 F.3d 296, 299 (5th
Cir.1995). The plaintiff bears the burden of showing good
cause. Kersh v. Derozier, 851 F.2d 1509, 1512 (5th
the plaintiff fails to show good cause, a court has
discretionary power to extend the time for service instead of
dismissing the case without prejudice. Millan v. USAA
General Indem. Co., 546 F.3d at 325; Thompson,
91 F.3d at 21. Exercise of this discretionary power may be
warranted, “‘for example, if the applicable
statute of limitations would bar the refiled action, or if
the defendant is evading service or ...