United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
L. GRAHAM UNITED STATES DISTRICT JUDGE
matter is before the Court on two motions to dismiss, which
arise from plaintiffs' alleged failure to effect service
of process on one defendant and from plaintiffs' alleged
failure to prosecute their claims against the other
Veng Ung and his sole proprietorship, 1219 Holdings, LLC,
brought this action for unlawful eviction relating to a
commercial lease. Plaintiffs filed the action on October 22,
2018 in state court against defendants Columbus
Extend-A-Suites, Nikon Capital, LLC, Columbus Series, and
Sterling Resource Management, Inc. The complaint alleges that
plaintiffs entered into a commercial lease with
Extend-A-Suites in October 2017. In connection with the
lease, plaintiffs purchased securities from Nikon Capital.
From the securities holdings, Extend-A-Suites could collect
unpaid lease obligations. The complaint, though admitting
that plaintiffs defaulted on their rent in March 2018,
asserts that Extend-A-Suites and Nikon Capital exceeded their
authority under the lease and the security agreement in
attempting to evict plaintiffs from the leased property.
removed the action to this Court on the basis of diversity
jurisdiction. 28 U.S.C. § 1332. Plaintiffs are citizens
of Texas, while Extend-A-Suites is a citizen of Ohio, Nikon
Capital a citizen of Nevada, and Sterling a citizen of
after removal, the Clerk of Court issued a notice to
plaintiffs' counsel that he was not admitted to practice
in the Southern District of Ohio. See Doc. 5. The
notice contained information and instructions concerning the
Court's Local Rules and admission pro hac vice.
Since that point in time, November 28, 2018, plaintiffs have
not made any filings or otherwise appeared in this
Failure to Effect Service of Process on Sterling
to removal, plaintiffs effected service on defendants
Extend-A-Suites and Nikon Capital on October 26 and 29, 2018,
respectively. See Doc. 1 at ¶¶ 2-3.
However, plaintiffs did not serve defendant
Sterling. Following removal, plaintiffs did not
serve Sterling, who now moves to dismiss for failure to
effect service. Plaintiffs have not responded to the motion.
Federal Rule of Civil Procedure 12(b)(5), a party may move to
dismiss a complaint for insufficient service of process. Rule
4(m) directs that if a defendant is not served within 90 days
after the complaint is filed, the court “must dismiss
the action without prejudice against that defendant”
unless the plaintiff shows good cause for the failure. In
cases where a complaint is removed from state court, Rule
4(m) has been interpreted to give plaintiffs 90 days
“after the date of removal to complete service.”
Medlen v. Estate of Meyers, 273 Fed. App'x 464,
470 (6th Cir. 2008) (citing cases).
case was removed from state court on November 16, 2018. The
Court notes that plaintiffs were made aware of the service
defect at the time of removal, as defendants stated in the
removal papers that Sterling had not been served. Even so,
plaintiffs have not served Sterling, nor have plaintiffs
shown good cause for their failure. Accordingly,
Sterling's motion to dismiss the complaint without
prejudice is granted.
Failure to Prosecute
Extend-A-Suites and Nikon Capital have moved to dismiss for
want of prosecution. Dismissal of a claim for failure to
prosecute is a measure made available to district courts, but
it is reserved for “extreme situations.” Wu
v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005).
Under Rule 41, “[i]f the plaintiff fails to prosecute
or to comply with these rules or a court order, a defendant
may move to dismiss the action or any claim against
it.” Fed.R.Civ.P. 41(b). The Rule gives district courts
a tool to manage their dockets and avoid “unnecessary
burdens on the tax-supported courts and opposing
parties.” Schafer v. City of Defiance Police
Dep't, 529 F.3d 731, 736 (6th Cir. 2008) (internal
quotation marks omitted).
dismissal is a “harsh sanction, ” a district
court should dismiss a claim for failure to prosecute only
where there is “a clear record of contumacious conduct
by the plaintiff” - conduct which “resist[s]
authority” and ...