Opinion
C. A. 7:23-cv-03306-TMC-KFM
01-08-2024
Israel Romero, Plaintiff, v. Facebook Meta, Mark Zuckerberg, and Jane Doe, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This is a civil action filed by the plaintiff, who is proceeding pro se. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases involving pro se litigants.
On July 11,2023, the plaintiff's complaint was entered on the docket (doc. 1). On August 16, 2023, the undersigned issued an order authorizing service of process of the plaintiff's complaint (doc. 14). Because the plaintiff paid the full filing fee, the order instructed him that he was responsible for service of process upon the defendants (id. at 1-2). The order warned the plaintiff that pursuant to Federal Rule of Civil Procedure 4(m), if a defendant was not served within 90 days after the summons is issued, the unserved defendant(s) may be dismissed from the case (id.).
On September 8, 2023, the plaintiff filed a document indicating that he served defendants Facebook Meta and Mark Zuckerberg, but he was unable to serve defendant Jane Doe because Jane Doe does not exist in the United States and he does not have an address for Jane Doe (doc. 18). Pursuant to Rule 4(m), “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 . . ., [b]ut if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m); see Gelin v. Shuman, 35 F.4th 212, 218-20 (4th Cir. 2022) (holding that district courts have discretion to extend the time to effect service of process even if there is a lack of good cause shown). Here, the plaintiff filed his lawsuit pro se. As such, the 90-day time limit did not run during the initial review of this case. Rather, it began to run on the date when the summons was issued, August 16, 2023 (doc. 15). The 90-day service deadline expired on November 14, 2023. See Robinson v. Clipse, 602 F.3d 605, 608-09 (4th Cir. 2010) (tolling during initial review). During this same time, defendants Mark Zuckerberg and Facebook Meta filed a motion to dismiss pursuant to Rule 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure (doc. 25). The motion to dismiss remains pending at this time.
Because the plaintiff failed to return an executed summons for defendant Jane Doe before the deadline set forth in Rule 4(m), the court issued an order on December 7, 2023, informing the plaintiff that Jane Doe should be dismissed from this action unless the plaintiff sought additional time to serve Jane Doe or provided the court with a statement of good cause for his failure to effectuate timely service of process upon Jane Doe (doc. 40). On December 14, 2023, the plaintiff filed a response asserting that service on Jane Doe was accomplished because the other defendants in this case, Facebook Meta and Zuckerberg “admitted they are Jane Doe” (capitalization altered) (see doc.42). As such, the issue of whether Jane Doe should be dismissed as an unserved defendant pursuant to Rule 4(m) of the Federal Rules of Civil Procedure is ripe for review.
As noted, the plaintiff has had multiple opportunities to ascertain information regarding Jane Doe in order to effectuate service upon Jane Doe. Additionally, the plaintiff has been warned that he is responsible for service of process and that failure to serve any defendant within 90 days of the issuance of the summons may result in dismissal of the unserved defendant (doc. 14 at 1-2). The undersigned also provided the plaintiff with an opportunity to show good cause for failing to effectuate timely service on Jane Doe (doc. 40). In response, instead of providing good cause for his failure to serve Jane Doe, the plaintiff argued that the remaining defendants had admitted everything in the complaint including that they were Jane Doe - so he was not required to serve Jane Doe (id. at 4-5). This assertion finds no basis in law or fact. As such, despite responding to the court's order, the plaintiff has not provided good cause for his failure to serve Jane Doe within the time period set forth in Rule 4(m).
Nevertheless, the Court of Appeals for the Fourth Circuit has found that district courts have discretion to extend the time to effect service of process absent a showing of good cause. Gelin v. Shuman, 35 F.4th 212, 218-20 (4th Cir. 2022). Here, though, the circumstances weigh against exercising such discretion. For example, the plaintiff's response to the court's order issued on December 7, 2023, does not provide a valid basis for his failure to serve Jane Doe (see doc. 42). Indeed, as noted above, the plaintiff's assertions regarding service of Jane Doe - based on his argument that the defendants admitted everything in the complaint and thus agreed that they were Jane Doe - are frivolous in nature. See Raiford v. FBI, C/A No. 1:10-cv-2751-MBS-JRM, 2010 WL 6737887, at *3 (D.S.C. Nov. 17, 2010), R&R adopted by 2011 WL 2020729 (D.S.C. May 23, 2011) (explaining a finding of factual frivolousness is appropriate when “the facts alleged rise to the level of the irrational or the wholly incredible”). As such, the instant matter is distinguishable from Gelin, and the court should not extend the time to effect service of process on Jane Doe. In light of the foregoing, the undersigned recommends that defendant Jane Doe be dismissed from this action pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The plaintiff's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committees note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Room 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).