Kohlhapp v. Department of Homeland Security

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

PAULA KOHLHAPP,

Plaintiff, 8:24CV436

vs. FINDINGS AND RECOMMENDATION DEPARTMENT OF HOMELAND SECURITY,

Defendant.

Plaintiff filed the Complaint on November 8, 2024. (Filing No. 1). On February 10, 2025, the undersigned magistrate judge issued a show cause order requiring Plaintiff to show cause why this case should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m) for failure to serve process. (Filing No. 5). The show cause order warned Plaintiff that failure to timely comply with the order may result in dismissal of the case without further notice. The deadline for responding to the show cause order was March 10, 2025. Plaintiff did not respond to the show cause order. There is still no indication that Defendant has been served and received notice of this lawsuit. Plaintiff did not file any return of service or waiver indicating service was accomplished, and Defendant has not entered a voluntary appearance. Plaintiff was responsible for having the summons and complaint served within the time allowed by Rule 4(m) and failed to do so in this case, even after being provided with an opportunity to show cause. See Fed. R. Civ. P. 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 or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period”). Even though Plaintiff is proceeding pro se, Plaintiff must still comply with local rules, court orders, and the Federal Rules of Civil Procedure. See Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996) (“In general, pro se representation does not excuse a party from complying with a court’s orders and with the Federal Rules of Civil Procedure.”); Bennett v. Dr Pepper/Seven Up, Inc., 295 F.3d 805, 808 (8th Cir. 2002) (a litigant’s “pro se status d[oes] not entitle him to disregard the Federal Rules of Civil Procedure[.]”). Under the circumstances, IT IS HEREBY RECOMMENDED to Susan M. Bazis, United States District Court Judge, that this case be dismissed without prejudice for failure of service pursuant to Federal Rule of Civil Procedure 4(m).

Dated this 17th day of March, 2025. BY THE COURT:

s/Michael D. Nelson United States Magistrate Judge

ADMONITION A party may object to a magistrate judge’s findings and recommendation by filing an objection within fourteen (14) days after being served with a copy of the findings and recommendation. NECivR 72.2. Failure to timely object may constitute a waiver of any objection.