4:25-cv-02276•Aguiar v. Musk et al
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION REINALDO AGUIAR, Plaintiff, v. ELON MUSK, et al., Defendant. § § § § § § § § § § 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 Case 4:25-cv-02276 Document 31 Filed 12/17/25 in TXSD Page 1 of 5
2 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 Case 4:25-cv-02276 Document 31 Filed 12/17/25 in TXSD Page 2 of 5
3 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. Case 4:25-cv-02276 Document 31 Filed 12/17/25 in TXSD Page 3 of 5
4 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. Case 4:25-cv-02276 Document 31 Filed 12/17/25 in TXSD Page 4 of 5
5 __________________________________ Richard W. Bennett United States Magistrate Judge Case 4:25-cv-02276 Document 31 Filed 12/17/25 in TXSD Page 5 of 5
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