Hoffman et al v. City of Mobile et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANTHONY HOFFMAN,
as Administrator of the
Estate of Joseph Lee Pritchett,
Plaintiff,
vs.
CITY OF MOBILE, et al.,
Defendants.
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CIVIL ACTION NO. 25-00021-B
REPORT AND RECOMMENDATION
This 	action 	is 	before 	the 	Court 	on 	review. 	For 	the 	reasons
set 	forth 	below, 	the 	undersigned 	recommends 	that 	this 	action 	be
DISMISSED without prejudice under Federal Rule of Civil Procedure
4(m) 	for 	Plaintiff’s 	failure 	to 	timely 	serve 	the 	Defendants 	with
process, 	or 	alternatively, 	under 	Federal 	Rule 	of 	Civil 	Procedure
41(b) and this Court’s inherent authority for Plaintiff’s failure
to diligently prosecute this action and to comply with the Court’s
orders.
I. 	BACKGROUND
On 	January 	15, 	2025, 	Plaintiffs 	Anthony 	Hoffman, 	as
Administrator of the Estate of Joseph Lee Pritchett, Joseph Hunter,
and 	Artemus 	Hunter 	(collectively, 	“Plaintiffs”) 	commenced 	this
action by filing a complaint against Defendants the City of Mobile,
Alabama 	(“City 	of 	Mobile”), 	former 	City 	of 	Mobile 	police 	chief
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Paul Prine (“Prine”), and fictitious defendants.1 	(Doc. 1).
In 	an 	order 	dated 	January 	17, 	2025, 	the 	Court 	struck
Plaintiffs’ initial complaint as an impermissible shotgun pleading
and 	granted 	Plaintiffs 	leave 	to 	file 	an 	amended 	complaint 	on 	or
before January 31, 2025. 	(Doc. 3). 	On January 31, 2025, Plaintiff
Anthony 	Hoffman, 	as 	Administrator 	of 	the 	Estate 	of 	Joseph 	Lee
Pritchett 	(hereinafter 	“Plaintiff”),2 filed 	an 	amended 	complaint
against 	the 	City 	of 	Mobile, 	Prine, 	and 	fictitious 	defendants.
(Doc. 4).
On 	February 	3, 	2025, 	Plaintiff 	filed 	a 	proposed 	summons 	for
Prine, and the summons was issued on February 4, 2025. 	(Docs. 5,
6). 	On 	February 	6, 	2025, 	Plaintiff 	filed 	a 	proposed 	summons 	for
the City of Mobile, and the summons was issued on February 7, 2025.
(Docs. 	8, 	9). 	On 	February 	4, 	2025, 	the 	Court 	entered 	a 	service
order, 	which 	required 	Plaintiff 	to 	file 	proof 	of 	service 	within
five days after completing service on a Defendant and to file any
waiver 	of 	service 	within 	five 	days 	after 	Plaintiff’s 	receipt 	of
the 	waiver. 	(Doc. 	7 	at 	1). 	The 	service 	order 	further 	directed:
“If within forty-five (45) days after the filing of the Complaint,
1 Plaintiffs 	paid 	the 	$405 	filing 	and 	administrative 	fees 	for 	a
civil action.
2 As 	noted 	supra, 	the 	initial 	complaint 	listed 	Joseph 	Hunter 	and
Artemus Hunter as additional Plaintiffs, but the operative amended
complaint lists Anthony Hoffman, as Administrator of the Estate of
Joseph Lee Pritchett, as the sole Plaintiff. 	(See Docs. 1, 4).
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Plaintiff has not effected service by summons or waiver of service,
Plaintiff shall file with the Court a notice describing the action
taken 	by 	Plaintiff 	to 	effect 	service 	and 	the 	results 	thereof.”
(Id.); see S.D. Ala. CivLR 4(a)(3).
In 	an 	order 	dated 	March 	21, 	2025, 	the 	Court 	noted 	that 	more
than 	sixty 	days 	had 	passed 	since 	the 	filing 	of 	the 	initial
complaint, 	and 	more 	than 	forty-five 	days 	had 	passed 	since 	the
filing of the amended complaint, but Plaintiff had not filed proof
or 	waiver 	of 	service 	with 	regard 	to 	any 	Defendant, 	nor 	had
Plaintiff filed a notice describing his efforts to serve Defendants
and 	the 	results 	of 	those 	efforts. 	(Doc. 	10 	at 	2). 	Accordingly,
the Court ordered Plaintiff to file a notice describing his service
efforts 	and 	to 	show 	cause 	for 	his 	failure 	to 	comply 	with 	the
Court’s 	service 	order 	and 	Civil 	Local 	Rule 	4(a)(3) 	on 	or 	before
March 	28, 	2025. 	(Id.). 	The 	Court 	cautioned 	Plaintiff 	that 	his
failure to timely comply with the order dated March 21, 2025, may
result 	in 	a 	recommendation 	that 	this 	action 	be 	dismissed 	for
failure 	to 	prosecute 	and 	to 	obey 	the 	Court’s 	orders. 	(Id.).
Despite 	the 	Court’s 	warning, 	Plaintiff 	failed 	to 	respond 	to 	the
show cause order dated March 21, 2025.
In 	an 	order 	dated 	April 	23, 	2025, 	the 	Court 	noted 	that 	more
than 	ninety 	days 	had 	passed 	since 	the 	filing 	of 	the 	initial
complaint against the City of Mobile and Prine in this action, and
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there was “still no indication that Plaintiff ha[d] even attempted,
much less perfected, service of process on any Defendant.” 	(Doc.
11 	at 	3-4). 	The 	Court 	also 	noted 	that 	Plaintiff 	had 	“failed 	to
respond 	to 	the 	show 	cause 	order 	dated 	March 	21, 	2025,” 	and 	had
thus 	“completely 	disregarded 	two 	service-related 	orders.” 	(Id.
(emphasis in original)). 	The Court notified Plaintiff that “this
action 	[was] 	subject 	to 	being 	dismissed 	without 	prejudice 	for
Plaintiff’s 	failure 	to 	complete 	service 	of 	process 	on 	Defendants
City of Mobile and Prine in compliance with Federal Rule of Civil
Procedure 	4(m)” 	and 	ordered 	Plaintiff 	to 	show 	good 	cause, 	on 	or
before 	May 	7, 	2025: 	“(1) 	why 	this 	action 	should 	not 	be 	dismissed
without 	prejudice 	under 	Federal 	Rule 	of 	Civil 	Procedure 	4(m) 	for
Plaintiff’s 	failure 	to 	perfect 	service 	of 	process 	on 	Defendants
City 	of 	Mobile 	and 	Prine 	within 	ninety 	days 	after 	the 	filing 	of
the 	complaint, 	and 	(2) 	why 	this 	action 	should 	not 	be 	dismissed
without 	prejudice 	for 	Plaintiff’s 	failure 	to 	comply 	with 	this
Court’s orders dated February 4, 2025 and March 21, 2025 (Docs. 7,
10).” 	(Id. at 4-5).
To date, Plaintiff has not responded to the show cause order
dated 	April 	23, 	2025, 	and 	there 	is 	still 	no 	indication 	in 	the
record that he has perfected or even attempted service of process
on 	any 	Defendant 	to 	date. 	The 	Court 	notes 	that 	Plaintiff 	is 	and
has 	been 	represented 	by 	counsel 	since 	the 	commencement 	of 	this
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action.
II. 	DISCUSSION
Rule 	4(m) 	of 	the 	Federal 	Rules 	of 	Civil 	Procedure 	provides:
“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.”
Fed. R. Civ. P. 4(m). 	However, “if the plaintiff shows good cause
for the failure, the court must extend the time for service for an
appropriate period.” 	Id.
Good 	cause 	“exists 	only 	when 	some 	outside 	factor, 	such 	as
reliance on faulty advice, rather than inadvertence or negligence,
prevented 	service.” 	Lepone-Dempsey 	v. 	Carroll 	Cty. 	Comm’rs, 	476
F.3d 	1277, 	1281 	(11th 	Cir. 	2007) 	(quotation 	omitted). 	“Absent 	a
showing 	of 	good 	cause, 	the 	district 	court 	has 	the 	discretion 	to
extend 	the 	time 	for 	service 	of 	process.” 	Id. 	at 	1282. 	In
exercising 	this 	discretion, 	the 	court 	must 	consider 	whether 	any
other 	circumstances, 	such 	as 	the 	expiration 	of 	a 	statute 	of
limitations or the defendant evading service, warrant an extension
of time based on the facts of the case. 	Id.
It 	has 	now 	been 	128 	days 	since 	the 	filing 	of 	the 	initial
complaint 	and 	112 	days 	since 	the 	filing 	of 	the 	amended 	complaint
in this case. 	However, there is still no indication that Plaintiff
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has even attempted, much less completed, service of process on any
Defendant. 	On 	April 	23, 	2025, 	the 	Court 	notified 	Plaintiff 	that
this 	action 	was 	subject 	to 	being 	dismissed 	without 	prejudice 	for
his 	failure 	to 	complete 	service 	of 	process 	on 	the 	Defendants 	in
compliance with Rule 4(m), and the Court ordered Plaintiff to show
good 	cause 	why 	this 	action 	should 	not 	be 	dismissed 	without
prejudice 	pursuant 	to 	Rule 	4(m) 	or 	for 	Plaintiff’s 	failure 	to
prosecute this action and to obey the Court’s orders. 	(Doc. 11 at
4-5). 	However, 	Plaintiff 	did 	not 	respond 	to 	the 	Court’s 	order
dated 	April 	23, 	2025, 	and 	he 	has 	therefore 	not 	shown 	good 	cause
for his failure to complete service of process on any Defendant.
Nor 	does 	the 	Court 	find 	any 	reason 	to 	extend 	the 	time 	for
Plaintiff to complete service of process on the Defendants in this
action. 	The 	record 	reflects 	that 	Plaintiff’s 	counsel 	has
repeatedly disregarded service-related deadlines and directives in
this 	case, 	despite 	having 	been 	warned 	of 	the 	consequences 	of
noncompliance. 	Notably, 	in 	addition 	to 	not 	complying 	with 	Civil
Local 	Rule 	4(a)(3) 	and 	the 	Court’s 	service 	order 	and 	failing 	to
timely serve Defendants with process in compliance with Rule 4(m),
Plaintiff’s 	counsel 	has 	failed 	to 	respond 	to 	two 	service-related
show cause orders.
There 	is 	no 	allegation 	or 	evidence 	of 	evasion 	of 	service 	by
Defendants 	City 	of 	Mobile 	or 	Prine 	that 	would 	warrant 	a 	further
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extension 	of 	the 	service 	deadline. 	Indeed, 	it 	has 	now 	been 	more
than four months since Plaintiff filed this lawsuit on January 15,
2025, 	and 	at 	no 	point 	has 	Plaintiff 	apprised 	the 	Court 	of 	any
problems 	encountered 	in 	serving 	these 	Defendants 	or 	of 	any 	facts
warranting 	additional 	time 	for 	service. 	It 	does 	appear 	that 	the
statute 	of 	limitations 	would 	bar 	a 	refiled 	action 	stemming 	from
the subject incident in this case. 	However, while the running of
the statute of limitation must be considered, it does not require
that 	a 	court 	extend 	the 	time 	for 	service 	of 	process 	under 	Rule
4(m). 	Horenkamp 	v. 	Van 	Winkle 	And 	Co., 	402 	F.3d 	1129, 	1132-33
(11th Cir. 2005); see Melton v. Wiley, 262 F. App’x 921, 924 (11th
Cir. 	2008) 	(per 	curiam) 	(affirming 	dismissal 	for 	counseled
plaintiff’s 	failure 	to 	timely 	serve 	defendant 	under 	Rule 	4(m)
despite 	expiration 	of 	statute 	of 	limitations 	during 	pendency 	of
case); 	Roberts 	v. 	Anderson, 	2024 	U.S. 	App. 	LEXIS 	7576, 	at 	*3-4,
2024 	WL 	1364698, 	at 	*2 	(11th 	Cir. 	Apr. 	1, 	2024) 	(per 	curiam)
(affirming dismissal for pro se plaintiff’s failure to timely serve
defendants 	under 	Rule 	4(m) 	despite 	the 	running 	of 	the 	statute 	of
limitations); Profit v. Americold Logistics, LLC, 248 F.R.D. 293,
297 (N.D. Ga. 2008) (finding permissive extension of time to effect
service 	of 	process 	unwarranted 	even 	though 	the 	expiration 	of 	the
limitations 	period 	would 	effectively 	bar 	plaintiff’s 	claims);
Harper v. M/V Ouro Do Brasil, 2013 U.S. Dist. LEXIS 204437, at *3,
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2013 	WL 	12388553, 	at 	*1 	(M.D. 	Fla. 	Aug. 	15, 	2013) 	(noting 	that
“[e]xtending 	the 	time 	to 	serve 	in 	every 	instance 	in 	which 	the
statute 	of 	limitations 	has 	lapsed 	would 	effectively 	eviscerate
Rule 	4(m) 	and 	defeat 	the 	purpose 	and 	bar 	of 	statutes 	of 	repose”)
(quotation omitted). 	That is particularly true in this case, since
Plaintiff’s counsel’s egregious and repeated disregard of service-
related deadlines and directives suggests that Plaintiff has lost
interest 	in 	and 	abandoned 	the 	prosecution 	of 	this 	action.
Accordingly, 	the 	undersigned 	finds 	that 	dismissal 	of 	this 	action
pursuant to Rule 4(m) is warranted under the circumstances.
Moreover, 	under 	both 	Federal 	Rule 	of 	Civil 	Procedure 	41(b)
and its own inherent power to manage its docket, a federal district
court 	is 	authorized 	to 	dismiss 	a 	case 	sua 	sponte 	for 	failure 	to
prosecute 	or 	to 	comply 	with 	court 	rules 	or 	a 	court 	order. 	See
Betty 	K 	Agencies, 	Ltd. 	v. 	M/V 	MONADA, 	432 	F.3d 	1333, 	1337 	(11th
Cir. 	2005). 	To 	dismiss 	an 	action 	with 	prejudice 	for 	failure 	to
prosecute 	or 	comply 	with 	court 	rules 	or 	a 	court 	order, 	the 	court
must 	find 	“a 	clear 	record 	of 	delay 	or 	willful 	conduct 	and 	that
lesser sanctions are inadequate to correct such conduct.” 	Id. at
1339. 	“While dismissal is an extraordinary remedy, dismissal upon
disregard 	of 	an 	order, 	especially 	where 	the 	litigant 	has 	been
forewarned, 	generally 	is 	not 	an 	abuse 	of 	discretion.” 	Moon 	v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
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Here, 	the 	circumstances 	described 	above 	also 	support 	an
alternative determination that Plaintiff has failed to diligently
prosecute 	this 	action 	and 	has 	repeatedly 	failed 	to 	comply 	with
this Court’s orders, and that dismissal without prejudice is also
appropriate 	under 	Rule 	41(b) 	and 	the 	Court’s 	inherent 	authority.
As 	explained 	above, 	it 	is 	more 	than 	a 	month 	past 	the 	service
deadline, 	and 	there 	is 	no 	indication 	that 	Plaintiff 	has 	made 	any
attempt 	to 	serve 	Defendants. 	Moreover, 	Plaintiff 	has 	repeatedly
failed to respond to the Court’s service-related show cause orders
in 	this 	case, 	even 	after 	being 	warned 	that 	his 	failure 	to 	comply
would 	subject 	this 	action 	to 	dismissal. 	The 	undersigned 	finds
that 	these 	circumstances 	demonstrate 	a 	clear 	record 	of 	delay 	and
willful 	disregard 	of 	the 	Court’s 	orders, 	and 	it 	does 	not 	appear
that 	any 	lesser 	sanction 	will 	suffice 	to 	correct 	such 	conduct.
Accordingly, 	the 	undersigned 	concludes 	that 	a 	dismissal 	of
Plaintiff’s 	claims 	is 	justified, 	even 	though 	it 	is 	likely
tantamount to a dismissal with prejudice.3
3 Where dismissal of a complaint without prejudice has the effect
of 	precluding 	a 	plaintiff 	from 	refiling 	his 	claim 	due 	to 	the
running of the statute of limitations, the dismissal is tantamount
to 	a 	dismissal 	with 	prejudice. 	Justice 	v. 	United 	States, 	6 	F.3d
1474, 1482 n.15 (11th Cir. 1993).
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III. CONCLUSION
For the reasons set forth above, the undersigned RECOMMENDS4
that this action be DISMISSED without prejudice under Federal Rule
of 	Civil 	Procedure 	4(m) 	for 	Plaintiff’s 	failure 	to 	timely 	serve
Defendants 	with 	process, 	or 	alternatively, 	under 	Federal 	Rule 	of
Civil 	Procedure 	41(b) 	and 	the 	Court’s 	inherent 	authority 	for
Plaintiff’s 	failure 	to 	diligently 	prosecute 	this 	action 	and 	to
comply with the Court’s orders.
NOTICE OF RIGHT TO FILE OBJECTIONS
A 	copy 	of 	this 	report 	and 	recommendation 	shall 	be 	served 	on
all parties in the manner provided by law. 	Any party who objects
to this recommendation or anything in it must, within fourteen (14)
days of the date of service of this document, file specific written
objections with the Clerk of this Court. 	See 28 U.S.C. § 636(b)(1);
4 “There is authority for the proposition that because [28 U.S.C.]
§ 636(c)(1) requires the ‘consent of the parties,’ jurisdiction to
dismiss 	a 	complaint 	only 	vests 	in 	the 	Magistrate 	Judge 	when 	all
parties named in a complaint have consented—even if those parties
have not yet been served.” 	Brewster v. Muscogee Cty. Superior Ct.,
2021 U.S. Dist. LEXIS 268700, at *11 n.1, 2021 WL 11728235, at *4
n.1 	(M.D. 	Ga. 	June 	1, 	2021), 	report 	and 	recommendation 	adopted,
2021 U.S. Dist. LEXIS 268629, 2021 WL 11728173 (M.D. Ga. July 13,
2021); 	see, 	e.g., 	Williams 	v. 	King, 	875 	F.3d 	500, 	504 	(9th 	Cir.
2017) (concluding “that consent of all parties (including unserved
defendants) is a prerequisite to a magistrate judge’s jurisdiction
to 	enter 	dispositive 	decisions 	under 	§ 	636(c)(1)”); 	Coleman 	v.
Labor 	& 	Indus. 	Review 	Comm’n 	of 	Wis., 	860 	F.3d 	461, 	470-73 	(7th
Cir. 2017). 	Therefore, the undersigned does not order, but rather
recommends, 	the 	dismissal 	of 	Plaintiff’s 	claims 	in 	this 	action.
See 	Brewster, 	2021 	U.S. 	Dist. 	LEXIS 	268700, 	at 	*11 	n.1, 	2021 	WL
11728235, at *4 n.1.
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Fed. R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). 	The parties should
note 	that 	under 	Eleventh 	Circuit 	Rule 	3-1, 	“[a] 	party 	failing 	to
object 	to 	a 	magistrate 	judge’s 	findings 	or 	recommendations
contained 	in 	a 	report 	and 	recommendation 	in 	accordance 	with 	the
provisions 	of 	28 	U.S.C. 	§ 	636(b)(1) 	waives 	the 	right 	to 	challenge
on appeal the district court’s order based on unobjected-to factual
and legal conclusions if the party was informed of the time period
for objecting and the consequences on appeal for failing to object.
In the absence of a proper objection, however, the court may review
on appeal for plain error if necessary in the interests of justice.”
11th Cir. R. 3-1.
In 	order 	to 	be 	specific, 	an 	objection 	must 	identify 	the
specific place in the Magistrate Judge’s report and recommendation
where 	the 	disputed 	determination 	is 	found. 	An 	objection 	that
merely incorporates by reference or refers to the briefing before
the Magistrate Judge is not specific.
DONE this 22nd day of May, 2025.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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