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Anderson v. Bank of America

United States District Court, Eighth Circuit

November 14, 2013

Philip R. Anderson, Plaintiff,
v.
Bank of America, Defendant.

REPORT AND RECOMMENDATION

LEO I. BRISBOIS, Magistrate Judge.

This matter came before the undersigned United States Magistrate Judge upon the routine supervision of cases and upon an assignment made in accordance with 28 U.S.C. 636(b)(1)(A).

Philip R. Anderson ("Plaintiff"), proceeding pro se, commenced this action on May 1, 2013, by filing his Complaint, [Docket No. 1], and on that same date made an Application to Proceed In Forma Pauperis ("IFP"). [Docket No. 2]. This Court granted Plaintiff's application to proceed IFP on May 7, 2013, (Order [Docket No. 6]), and also on that date, the Clerk's office mailed to Plaintiff the U.S. Marshal Service Form.

It has now been more than 120 days since the Court granted Plaintiff's Application to Proceed IFP, and Plaintiff has not provided proof that he has served a copy of the summons and complaint on Bank of America ("Defendant"). See Fed. R. Civ. Pro. 4(m) ("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.").

On October 15, 2013, this Court instructed Plaintiff that he was required to "provide proof of service or show good cause for an extension of time to serve Defendant" within twenty (20) days of the Court's Order. ([Docket No. 8], at 1). Additionally, the Court gave notice to Plaintiff that "[i]f Plaintiff fails to comply with these directives, the undersigned will recommend that this action be dismissed for failure to effect proper service and failure to prosecute." (Id. at 1-2).

As of today's date, more than 20 days have passed since the Court issued its Order, and Plaintiff still has neither provided proof of service on Defendant, nor provided good cause why this Court should grant him an extension of time to do so.

Therefore, pursuant to the provisions of Rule 4(m), the Court recommends that this action be dismissed for failure to effect proper service and failure to prosecute unless Plaintiff, within the 14-day deadline to object to this Report and Recommendation, can provide proof of service or show good cause for an extension of time to serve Defendant.

Based upon the above, and upon all the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that Plaintiff's Complaint, [Docket No. 1], be DISMISSED without prejudice, for failure to effect service and for lack of prosecution, unless Plaintiff, within the 14-day deadline to object to this Report and Recommendation, provides proof of service or shows good cause for an extension of time to serve Defendant.


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