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Case: 3:13-cv-00300-MPM-SAA Doc #: 11 Filed: 11/25/14 1 of 2 PageID #: 63

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION

PHILIP HALBERT NEILSON


v.

PLAINTIFF
CIVIL ACTION NO.: 3:13cv300-MPM-SAA

JAMES GREENLEE, MATTHEW BULWINKEL,


MICHAEL TURNER, OF THE FEDERAL
BUREAU OF INVESTIGATION, SUSAN HOWELL
OF THE OFFICE OF THE INSPECTOR GENERAL,
THE UNITED STATES OF AMERICA, JOHN DOES 1-15

DEFENDANTS

ORDER OF DISMISSAL
Plaintiff filed his Complaint on December 13, 2013. Docket # 1. Plaintiff took no other
action in the case until the court entered an Order to Show Cause on August 15, 2014, eight
months after the filing of the Complaint and four months after the time to serve defendants had
run on April 12, 2014. Docket # 6. The Order to Show Cause required plaintiff to demonstrate
why his case should not be dismissed for failure to prosecute. Plaintiff responded on August 28,
2014, and was granted thirty (30) days from September 8, 2014 to obtain service of process on
defendants. Docket # 8. Although plaintiff amended his Complaint on September 12, 2014, he
did not request that a summons be issued for defendants and therefore could not accomplish
service of process on defendants. Docket #10. Plaintiffs Amended Complaint does not add any
new defendants, but instead only amends a few allegations.1
Rule 4(m) of the Federal Rule of Civil Procedure dictates that:

When a complaint is amended to add new parties, the plaintiff is given 120 days from
the date of the amendment to serve the new defendants, but amendment does not extend the time
for serving parties who were named earlier. Lindley v. City of Birmingham, 452 Fed.Appx. 878,
880 (11th Cir. 2011); Brait Builders Corp. v. Mass. Div. Of Capital Asset Mgmt., 644 F.3d 5, 9
(1st Cir. 2011); Todd v. City of LaFayette, 2013 WL 6050855, *2 (M.D. Ala. Sept. 23, 2013).

Case: 3:13-cv-00300-MPM-SAA Doc #: 11 Filed: 11/25/14 2 of 2 PageID #: 64

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.
But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Nearly one year has passed since plaintiff filed his Complaint, and the only extension of time
requested by plaintiff was the thirty-day extension granted on September 8, 2014. Rather than
attempting to obtain service of process on the defendants, plaintiff filed an Amended Complaint
on September 12, 2014. Even now plaintiff does not appear to have made any effort to even
have a summons issued for the Amended Complaint, much less to accomplish service of process.
Plaintiff has provided no good faith basis for his complete failure to obtain service of process on
defendants. Because plaintiff has made no effort to prosecute his case, this action is
DISMISSED without prejudice.
This, the 25th day of November, 2014.

/s/ MICHAEL P. MILLS


UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI