Smith v. Mayorkas

SUONUITTEHDE RSTNA DTIESST RDIICSTT ROIFC TN ECWOU YROTR K ---------------------------------------------------------------------- X : HUBERT GEORGE SMITH, : : Plaintiff, : : 22 Civ. 9576 (JPC) -v- : : ORDER ALEJANDRO MAYORKAS, et al., : : : Defendants. : : ---------------------------------------------------------------------- X JOHN P. CRONAN, United States District Judge: The Complaint in this action was filed on November 9, 2022. Dkt. 1. While Defendants have appeared in this action, see Dkt. 7, the docket does not reflect whether any of the Defendants have been served. Pursuant to Federal Rule of Civil Procedure 4(m), “[i]f 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 or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). Nor has Plaintiff requested an extension of time to serve Defendants.

Accordingly, Plaintiff is ordered to file a status letter by February 17, 2023, describing (1) whether service of the summons and Complaint has been made on Defendants, and if not, (2) why good cause exists to excuse Plaintiff’s failure to serve Defendants within the 90-day deadline set by Rule 4(m). See Fed. R. Civ. P. 4(m) (“[I]f the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.”). The Court reminds Plaintiff that “[t]o establish good case a plaintiff must demonstrate that despite diligent attempts, service could not be made due to exceptional circumstances beyond his or her control.” Deptula v. Rosen, 558 F. Supp. 3d 73, 75 (S.D.N.Y. 2021) (internal quotation marks omitted).

Plaintiff must file this letter even if service of the Summons and Complaint is or has already been made on Defendants. If Defendants have been served, Plaintiff must also file proof of service on the docket no later than February 17, 2023. If no such letter is filed, the Court may dismiss the case for failure to prosecute.

SO ORDERED.

Dated: February 10, 2023 VF New York, New York JOHN P. CRONAN United States District Judge