Al-Harbi v. Coronado Country Club

Full title: SAAD AL-HARBI, Plaintiff, v. CORONADO COUNTRY CLUB, Defendant

Court: United States District Court, W.D. Texas, El Paso Division

Date published: Apr 29, 2005

No. EP-04-CA-0285-DB (W.D. Tex. Apr. 29, 2005)

Opinion

EP-04-CA-0285-DB.

April 29, 2005

MEMORANDUM OPINION AND ORDER

DAVID BRIONES, District Judge

On this day, the Court sua sponte considered the above-captioned cause.

Plaintiff filed the instant cause on August 11, 2004. On March 4, 2005, the Court entered an Order directing Plaintiff to perfect service of process on Defendant Coronado Country Club by April 4, 2005 or face dismissal of the instant cause. On March 21, 2005, Plaintiff filed a copy of his Complaint and a Certified Mail Receipt for a letter sent to "G.M (Coronado Country Club), 1044 BROADMOOR, El Paso, TX, 79912," along with a handwritten note stating, "This is my proof to perfect service of process on Defendant Coronado Country Club" ("March 21 filing"). On April 8, 2005, the Court entered an Order directing Plaintiff to notify the Court within 15 days what documents he mailed to Defendant.

On April 20, 2005, Plaintiff filed a letter informing the Court what documents Plaintiff mailed ("April 20 Notice"). The letter was accompanied by a copy of the Court's April 8 Order, a copy of Plaintiff's Complaint, and copies of a Certified Mail Receipt. After due consideration, the Court is of the opinion that the instant cause should be dismissed, pursuant to Federal Rule of Civil Procedure 4(m), because Plaintiff has failed to comply with Federal Rule of Civil Procedure 4(c)(1) and the Court's March 4 Order.

AUTHORITIES

Federal Rule of Civil Procedure 4(c)(1) dictates that in order to properly affect service upon a defendant, a "plaintiff is responsible for service of a summons and complaint within the time allowed under subdivision (m)." FED. R. CIV. PRO. 4(c)(1). Rule 4(m) allows a plaintiff 120 days to effect service of process upon a defendant. FED. R. CIV. PRO. 4(m). If service of the summons and the complaint is not made within 120 days of the filing of the complaint, a court, on its own initiative after notice to the party, may dismiss the action without prejudice to that defendant. See id.

DISCUSSION

Rule 4(c)(1) dictates that Plaintiff had 120 days from the date of filing his Complaint to effect service upon Defendant. See FED. R. CIV. PRO. 4(c)(1). Plaintiff filed the instant cause on August 11, 2004. Plaintiff's 120-day period to effect service ended on December 9, 2004. Rule 4(m) proscribes that when Plaintiff's time to serve Defendant expired, the Court could direct Plaintiff to affect service within a specified amount of time, or the Court could dismiss the action without prejudice, after providing Plaintiff notice. See FED. R. CIV. PRO. 4(m). Accordingly, on March 4, 2005, the Court ordered Plaintiff to effect service on Defendant by April 4, 2005, and warned that the instant cause would be dismissed if Plaintiff failed to properly effect service on Defendant by April 4, 2005.

To properly effect service on Defendant, Rule 4(c)(1) requires that Plaintiff serve a copy of the Complaint in the instant cause and a summons upon Defendant. See FED. R. CIV. PRO. 4(c)(1) (emphasis added). Through his March 21 filing, which consisted of a copy of his Complaint and a Certified Mail Receipt, Plaintiff purported to have properly served Defendant. While the March 21 filing complied with the Court's deadline, because a copy of a summons was not among the papers Plaintiff filed, the Court could not conclude whether Plaintiff served Defendant in accordance with Rule 4(c). As such, on April 8, 2005, the Court ordered Plaintiff to notify the Court what papers Plaintiff had actually mailed to Defendant. This was essential so that the Court could determine whether Plaintiff had perfected service upon Defendant pursuant to Rule 4(c).

In response the Court April 8 Order, Plaintiff filed his April 20 Notice. Plaintiff's April 20 Notice consisted of a copy of Plaintiff's Complaint and copies of a Certified Mail Receipt. Plaintiff's April 20 Notice, like his March 21 filing, did not include a copy of a summons. From Plaintiff's April 20 Notice, the Court finds that Plaintiff has yet to serve a summons upon Defendant. Rule 4(c) requires that Plaintiff serve both a summons and a copy of the Complaint on Defendant, see FED. R. CIV. PRO. 4(c). Therefore, the Court concludes that Plaintiff failed to properly effect service on Defendant by April 4, 2004.

Rule 4(m) directs the Court to "dismiss an action without prejudice as to a defendant" when a plaintiff has not effected service within 120 days, and when the Court has notified the plaintiff of its intent to dismiss the action. FED. R. CIV. PRO. 4(m). Here, the Court's March 4 Order, in addition to extending Plaintiff time to effect service upon Defendant, warned Plaintiff that if he failed to effect service on Defendant by April 4, 2005, the Court would dismiss the instant cause. Thus, the caveat contained in the Court's March 4 Order notified Plaintiff of the Court's intent to dismiss the instant action if Plaintiff failed to comply with the March 4 Order. Plaintiff failed to serve Defendant within 120 days, and was given ample notice of the Court's intent to dismiss the instant cause if Plaintiff failed to properly effect service on Defendant. Therefore, the Court concludes that, pursuant to Rule 4(m), it should dismiss the instant cause without prejudice.

Accordingly, IT IS HEREBY ORDERED that the instant cause is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.