United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OF DISMISSAL WITHOUT
VÁZQUEZ United States District Judge
MATTER is before the Court on the Magistrate Judge's
Proposed Findings and Recommended Disposition [Doc. 11],
issued on June 9, 2017. The Honorable Stephan M. Vidmar,
United States Magistrate Judge, recommended that this action
be dismissed without prejudice because Plaintiff has failed
to serve Defendant and further has failed to show cause why
the action should not be dismissed. Id. The Court
agrees with Judge Vidmar that Plaintiff has failed to serve
Defendant, as required by Fed.R.Civ.P. 4. This action will be
dismissed without prejudice.
filed his Complaint on December 5, 2016, claiming that
Defendant, his employer, unlawfully retaliated against him
when he refused to cheat his subordinates out of overtime
pay. [Doc. 1] at 2. Plaintiff further alleged that his
employer discriminated against him based on his Hispanic
ethnicity, created a hostile work environment for him, and
constructively discharged him. Id. at 3-4. Plaintiff
had 90 days from filing the Complaint, or until March 6,
2017, to serve the Defendant with process. Fed.R.Civ.P. 4(m)
(2015). That date passed, and nothing on the record indicated
that Plaintiff had served Defendant. Thus, Judge Vidmar
ordered Plaintiff to show cause why his claims should not be
dismissed without prejudice for failure to timely serve
Defendant. [Doc. 7] (citing Fed.R.Civ.P. 4(m); Espinoza
v. United States, 52 F.3d 838, 841 (10th Cir. 1995)).
response to the Order to Show Cause, Plaintiff explained that
he did not understand how he had failed to comply with Rule 4
and asked the Court to appoint him an attorney. [Doc. 8].
Judge Vidmar denied the request for appointment of counsel.
[Doc. 9]. However, Judge Vidmar did explicitly direct
Plaintiff to “arrange for the summons and complaint to
be served on Defendant . . . and [to] file the appropriate
paper on the record showing that Defendant has been
served.” [Doc. 9] at 2. Further, Judge Vidmar cited
Plaintiff to Fed.R.Civ.P. 4 and to the relevant portion of
the Court's Guide for Pro Se Litigants. Id. He
then gave Plaintiff until June 9, 2017, to serve Defendant or
otherwise show cause why this action should not be dismissed
without prejudice. Id.
timely responded on June 7, 2017. [Doc. 10]. Plaintiff
provided three attachments, which he described as:
Item-1 is a copy of the invoice and the certified receipts
which was mailed respectively to all three parties. Item-2 is
a copy of the notice of appeal petition sent to Eric K[.]
Fanning, Secretary of the Army[, ] and Item-3 is a copy of a
letter acknowledging receipt of the certified mail to U.S.
Equal Employment Opportunity Commission in Washington[, ]
The listed items demonstrate the fact that the mail has been
delivered respectively to all three parties in accordance to
local rules of civil procedures.
[Doc. 10] at 1-2. The attachment labeled “Item-1”
was a photocopy of three certified mail receipts. The
receipts each reflected that something was mailed on November
12, 2016. Two of the receipts reflected that the recipient
was at White Sands Missile Range, and the third recipient was
in Washington, D.C. Id. at 3.
Vidmar found that nothing in Plaintiff's response
suggested that he had served Defendant with the summons and
complaint. [Doc. 11] at 2-3. Judge Vidmar explained that,
although the Item-1 documents showed that Plaintiff mailed
something to someone, they failed to show that he served the
summons and complaint in this case on Defendant.
Id. This was so because the complaint in this case
was filed on December 5, 2016-more than three weeks after the
mailings were sent. Judge Vidmar found that it was simply not
possible that mail sent on November 12, 2016, could have
included a summons for a lawsuit filed three weeks later.
Even if Plaintiff had mailed the Complaint on November 12,
2016, and simply waited until December 5, 2016, to actually
file it with the Court, Judge Vidmar found that Plaintiff
could not have mailed the summons on November 12, 2016.
Additionally, Judge Vidmar found that Item-2 and Item-3 did
nothing to suggest that Plaintiff had complied with the
service provision of Rule 4. Nor had Plaintiff offered any
explanation as to why he had failed to serve Defendant or why
this action should not be dismissed without prejudice.
Id. Accordingly, Judge Vidmar recommended that his
action be dismissed without prejudice for lack of service.
timely objected on June 12, 2017. [Doc. 12]. He argues that
he “did file and mail the complaint to the three
agencies[.]” Id. at 2. To the extent that he
is asserting that he has served Defendant with the summons
and complaint from this case, the Court is not persuaded.
the materials filed in this case suggest that Plaintiff has
served Defendant with the summons and complaint in this case.
also seems to argue that he believed the Clerk's Office
would serve the summons and complaint for him in exchange for
the filing fee that he paid. [Doc. 12] at 2. Plaintiff
further argues that someone in the Clerk's Office told
him that his documents were sufficient to show that
“the agencies received my complaints.”
Id. He explains that he cannot find a lawyer who
will take his case. Id. He feels that he should not
“have to go to legal terms, forms, and procedures that
only an attorney would know.” Id. Finally, he
urges that his claims are meritorious and that the Court
should provide him “legal guidance.” Id.
Court is sympathetic to Plaintiffs frustration. The Court,
however, is not permitted to act as Plaintiffs advocate.
Importantly, even after Judge Vidmar explicitly instructed
Plaintiff on how to serve Defendant in accordance with Rule
4, Plaintiff failed to do so. See [Docs. 9, 10].
Then, after Judge Vidmar recommended dismissing the action
for lack of service, Plaintiff still has shown no effort to
serve Defendant with the summons and complaint as required by
Rule 4 and has thoroughly explained in the Court's Guide
for Pro Se Litigants. See [Docs. 11, 12].
THEREFORE ORDERED, ADJUDGED, AND DECREED that this action be
DISMISSED without prejudice for failure to comply with the