UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LA VEEDA GARLINGTON,
Plaintiff,
v. Civil Action No. 13-1840
DISTRICT OF COLUMBIA WATER AND Judge Beryl A. Howell
SEWER AUTHORITY,
Defendant.
MEMORANDUM OPINION
Although the disposition of claims on the merits is favored, when the plaintiff fails to
prosecute a case by not serving the complaint in a timely manner under applicable Federal Rules
of Civil Procedure, or otherwise fails to comply with a court order, the Court has the “inherent
power to dismiss a case sua sponte.” Peterson v. Archstone Cmtys. LLC, 637 F.3d 416, 418 (D.C.
Cir. 2011) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962)); see also FED. R. CIV. P.
41(b); D.D.C. Local Rule 83.23. As the following procedural background makes clear, the
exercise of this “inherent power” is warranted in this case.
The plaintiff filed her complaint on November 20, 2013, Compl. ECF No. 1, and proof of
service was due within 120 days, by March 20, 2014, see FED. R. CIV. P. 4(m). The day before
that due date, rather than file proof of service, the plaintiff moved for a 45 day extension of time
to serve the Complaint “thereby affording sufficient time for Plaintiff to file” an amended
complaint. Pl.’s Mot. Ext. Time Serve Compl., ECF No. 4. The Court granted the plaintiff’s
motion and directed her to file proof of service by May 5, 2014. See March 21, 2014 Minute
Order. In addition, the Court granted the plaintiff’s motion for a CM/ECF password to facilitate
the electronic filing of documents with the Court. Id.
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The plaintiff did not file proof of service by the extension date of May 5, 2014, or request a
second extension of time to do so. Consequently, the Court ordered the plaintiff to show cause
why this action should not be dismissed for failure to prosecute. See Order to Show Cause, ECF
No. 5. The Court explained that absent timely proof of service, Federal Rule of Civil Procedure
4(m) requires that the complaint be dismissed without prejudice, and further detailed how proof of
service is to be made to the Court. Id. Finally, the Court directed the plaintiff to file, by May 22,
2014: “(1) proof of service or a motion requesting ‘that service be made by a United States
marshal or deputy marshal,’ see FED. R. CIV. P. 4(c)(3); (2) a motion for extension of time to
serve the defendant; and (3) a statement setting forth good cause why this action should not be
dismissed for failure to prosecute.” Id. The plaintiff has not responded. 1
Federal Rule of Civil Procedure 4(m) states: “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.” Local Civil Rule 83.23 further provides that “[a] dismissal
for failure to prosecute may be ordered by the Court upon motion by an adverse party, or upon
the Court’s own motion.” Pursuant to these rules, courts may sua sponte dismiss an action
where the plaintiff has failed to comply with Rule 4(m). See Paul v. Didizian, No. 13-7132,
2014 WL 590628, at *1 (D.C. Cir. Feb. 7, 2014) (affirming district court’s dismissal without
prejudice of plaintiff’s claims “for failure to properly effect service of process”); Pellegrin &
Levine, Chartered v. Antoine, 961 F.2d 277, 282–83 (D.C. Cir. 1992) (affirming district court’s
sua sponte dismissal of plaintiff’s suit where plaintiff failed to show “good cause” for failure to
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The plaintiff, who has identified herself in the Complaint and in her Motion for Approval to File Electronically,
ECF No. 3, as a lawyer, was granted at her request, a CM/ECF password and, consequently, is “responsible for
monitoring [her] e-mail accounts, and, upon receipt of notice of an electronic filing, for retrieving the noticed
filing.” D.D.C. Local Rule 5.4(b)(6). Nevertheless, in excess of caution, copies of the Court’s orders were also
mailed to the plaintiff. See December 2, 2013 Staff Notes; March 24, 2014 Staff Notes; May 8, 2014 Staff Notes.
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serve defendant within 120 days of filing the complaint); Kopff v. Battaglia, 425 F. Supp. 2d 76,
80 (D.D.C. 2006) (dismissing claims against ten defendants without prejudice where plaintiff
did not file proof of service). “A ‘lengthy period of inactivity’ may justify dismissal
‘particularly . . . if the plaintiff has been previously warned that he must act with more
diligence, or if he has failed to obey the rules or court orders, or if he has no excuse for the
delay, or if there are other factors aggravating the inaction.’” Angellino v. Royal Family Al-
Saud, 688 F.3d 771, 776 (D.C. Cir. 2012), cert. denied, 133 S. Ct. 851 (2013) (citing Smith–Bey
v. Cripe, 852 F.2d 592, 594 (D.C. Cir. 1988)).
Although pro se litigants are given “more latitude” than those who are represented by
counsel, Moore v. Agency for Int’l Dev., 994 F.2d 874, 876–77 (D.C. Cir. 1993) (allowing pro
se litigant opportunity to perfect service where litigant had made two attempts to serve
defendants and defendants were already aware of the suit); see also Haines v. Kerner, 404 U.S.
519, 520 (1972) (holding pro se complaints to “less stringent standards than formal pleadings
drafted by lawyers”), courts have nonetheless dismissed without prejudice suits brought by pro
se litigants where the plaintiff has “fail[ed] to produce evidence of having served [] defendants
and [] made no effort to show good cause for his failure to comply with the court’s order”
extending the time to perfect service, see Hilska v. Jones, 297 F. Supp. 2d 82, 90 (D.D.C. 2003)
(dismissing without prejudice suit where pro se plaintiff “had well beyond the 120 days
provided him under the federal rules to perfect service on these defendants or to show good
cause for failing to do so” and did not comply with the extended deadline).
The plaintiff, who is an attorney, is a sophisticated pro se litigant, having practiced law
for several years, Compl. ¶¶ 47, 56–57, and obtained a CM/ECF password for the purposes of
litigating the instant suit, see March 21, 2014 Minute Order. Since filing the complaint, the
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plaintiff has had 190 days to file proof of service but has not done so. The Court has twice
extended the deadline to file proof of service. See March 21, 2014 Minute Order; Order to
Show Cause. The Court has also issued an order to show cause warning the plaintiff that her
case may be subject to dismissal, directing her to file proof of service within fourteen days, and
informing the plaintiff that, in lieu of serving the defendant, she could move to request “that
service be made by a United States marshal or deputy marshal,” pursuant to Federal Rule of
Civil Procedure 4(c)(3). Order to Show Cause; cf. Angellino, 688 F.3d at 778 (reversing district
court’s dismissal of pro se litigant’s suit for failure to serve process in part because “the court
never explained to [plaintiff] the alternative means by which he could attempt service”). The
plaintiff has not responded to the Court’s order to show cause. The plaintiff’s inaction justifies
dismissal without prejudice given that “the plaintiff has been previously warned that [s]he must
act with more diligence, . . . has failed to obey the rules or court orders, . . . [and] has no excuse
for the delay.” Angellino, 688 F.3d at 776, 777 (finding that pro se litigant’s failure to serve
process “was not a result of ‘inactivity’” because the plaintiff twice attempted to serve process
“within two weeks of filing his complaint” and “promptly responded” to the court’s orders to
show cause why the action should not be dismissed for failure to prosecute). In light of these
circumstances, the plaintiff’s complaint is dismissed without prejudice.
An order consistent with this Memorandum Opinion will be entered.
Digitally signed by Hon. Beryl A.
Howell
DATED: May 29, 2014 DN: cn=Hon. Beryl A. Howell,
o=District of Columbia, ou=U.S.
District Court for the,
email=Howell_Chambers@dcd.usc
ourts.gov, c=US
Date: 2014.05.29 19:04:17 -04'00'
______________________
BERYL A. HOWELL
United States District Judge
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