Aguiar v. Musk et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
REINALDO AGUIAR,
Plaintiff,
v.
ELON MUSK, et al.,
Defendant.
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Civil Action No. 4:25-cv-2276
MEMORANDUM AND RECOMMENDATION
On November 13, 2025, the Court entered an order of non-compliance
regarding Plaintiff Reinaldo Aguiar’s (“Plaintiff”) failure to effectuate service
and resetting the case for an initial scheduling conference on December 18,
2025. 	(ECF No. 22). 	In the November 13 Order, the Court warned Plaintiff
that failure to effectuate service may result in a recommendation that this case
be dismissed. (Id. at 2). 	As of the date of this Order, Plaintiff has not served
Defendant(s). As such, the Court RECOMMENDS this case be DISMISSED
WITHOUT PREJUDICE.
I. 	Background
On May 19, 2025, Plaintiff filed his Complaint (ECF No. 1), and by order
dated May 19, 2025, this Court set the case for an initial scheduling conference
on August 28, 2025 (ECF No. 3). The Court advised that Federal Rule of Civil
United States District Court
Southern District of Texas
ENTERED
December 17, 2025
Nathan Ochsner, Clerk
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Procedure (“Rule”) 4(m) requires defendant(s) to be served within 90 days after
the filing of the complaint and that the failure of plaintiff(s) to file proof of
service within 90 days after the filing of the complaint may result in dismissal
of the action. (ECF No. 3 at 2).
By order dated August 22, 2025, this Court reset the case for an initial
scheduling conference on October 8, 2025. 	(ECF No. 9). 	The District Judge
also ordered Plaintiff to serve Defendant(s) by September 12, 2025, “or else
Plaintiff’s claims may be dismissed for want of prosecution without further
notice.” 	(ECF No. 10). 	By order dated October 15, 2025, this Court reset the
case for an initial scheduling conference on November 20, 2025. (ECF No. 20).
By order dated November 13, 2025, this Court reset the case for an initial
scheduling conference on December 18, 2025. (ECF No. 22). In the November
Order, the Court warned Plaintiff that failure to follow the Court’s Order may
result in a recommendation that this case be dismissed. 	(Id. at 2). 	In the
interim, Plaintiff filed motions for extension of time for service (ECF Nos. 12,
15, 17) in September 2025. 	Despite having months of time to effect service,
Plaintiff has failed to do so.
II. Discussion
Plaintiff still has not filed with the Court proof of timely service of the
Defendant(s). See F ED. R. C IV . P. 4(m). Plaintiff also has not requested service.
See F ED. R. C IV . P. 4(b) (providing that on or after filing a complaint, plaintiff
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may present a summons to the clerk for signature and seal; if summons is
properly completed, the clerk must issue it to plaintiff for service on the
defendant). 	Plaintiff therefore has not complied by with this Court’s orders
directing him to serve the Defendant(s) in accordance with Rule 4, and to file
proof of such service with this Court on or before September 12, 2025. 	(ECF
No. 10). 	Although Plaintiff has filed motions for extension of time to serve
Defendant(s) (ECF Nos. 12, 15, 17), which are still pending, Plaintiff has been
given a significant amount of time to effectuate service but has failed to do so.
See Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013) (finding no
abuse of discretion in dismissing claims because plaintiff failed to effect service
properly in spite of the court’s warning and generous allotment of time after
the deadline to effect service had passed before it was dismissed).
“A district court may dismiss a case for failure to prosecute or comply
with court orders.” 	Thompson v. Nueces Cnty. Jail, No. 2:24-cv-00107, 2024
WL 4507372, at *2 (S.D. Tex. Sept. 16, 2024), report and recommendation
adopted, No. 2:24-cv-00107, 2024 WL 4505476 (S.D. Tex. Oct. 16, 2024) (citing
FED. R. C IV . P. 41(b); Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997)
(“The district court also has the inherent authority to dismiss an action sua
sponte , without motion by a defendant.”)). Furthermore, the Rule 4(m) period
to serve Defendants was not tolled by the pending motions. 	See Salvador v.
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Target Corp., No. 4:23-cv-585, 2024 WL 408968, at *3 (E.D. Tex. Feb. 2, 2024)
(“[T]he Rule 4(m) period was not tolled by the pending Motion to Dismiss.”).
Because Plaintiff failed comply with court orders to effectuate proper
service, the Court recommends dismissal of the case on this ground. 	See
Thibeaux v. Cayce, No. 4:24-cv-2836, 2025 WL 490485, at *3 (S.D. Tex. Feb. 4,
2025), 	report 	and 	recommendation 	adopted, 	No. 	4:24-cv-02836, 	2025 	WL
490492 (S.D. Tex. Feb. 13, 2025), appeal dismissed, No. 25-20050, 2025 WL
2388774 (5th Cir. July 1, 2025) (“Because [plaintiff] failed comply with court
orders to effectuate proper 	service by January 	19, 	2025, the 	Court 	also
recommends dismissal of the case on this ground.”).
III. 	Conclusion
Based 	on 	the 	foregoing, 	the 	Court 	RECOMMENDS 	this 	case 	be
DISMISSED WITHOUT PREJUDICE.
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
and General Order 2002-13. Failure to file written objections within the time
period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
SIGNED in Houston, Texas on December 17, 2025.
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__________________________________
Richard W. Bennett
United States Magistrate Judge
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