Castro v. Bondi et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDILBERTO CASTRO,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:25-cv-3773
PAM BONDI, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
Plaintiff filed this case against Defendants on August 12, 2025. Plaintiff
was required under Federal Rule of Civil Procedure 4(m) to serve Defendants
within ninety days. 	The deadline for serving Defendants was November 10,
2025. See FED. R. C IV . P. 4(m). However, proof of timely service of Defendants
has not been filed with the Court.
On January 14, 2026, the Court issued an Order of Non-Compliance and
Resetting Rule 16 Conference. 	(ECF No. 5). 	In the Order, the Court warned
Plaintiff that his case may be dismissed if proof of service was not filed by
February 13, 2026. 	(Id.). 	That deadline has now passed and proof of timely
service of Defendants has not been filed with the Court.
On March 18, 2026, the Court ordered Plaintiff to show cause within ten
days as to why he has failed to comply with the Court’s previous Order to
timely serve Defendants. 	(ECF No. 6). 	The Court warned Plaintiff that if he
United States District Court
Southern District of Texas
ENTERED
March 31, 2026
Nathan Ochsner, Clerk
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failed to file an explanation on the docket, the Court would recommend the
case be dismissed without prejudice. (Id.).
Federal Rule of Civil Procedure (“Rule”) 41(b) allows a court to dismiss
an action sua sponte for failure to prosecute or for failure to comply with the
federal rules or any court order. Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835,
844 (5th Cir. 2018) (citing McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th
Cir. 1988)). 	Further, under Rule 4, if a plaintiff does not properly serve a
defendant within ninety 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.” 	F ED. R. C IV . P. 4(m); see Thrasher v. City of Amarillo, 709
F.3d 509, 511 (5th Cir. 2013).
Here, the Court should dismiss this action under Rules 41(b) and 4(m).
Plaintiffs are entitled to notice before a district court dismisses an action sua
sponte for failure to timely serve a defendant under Rule 4(m). 	Lyons v.
Starbucks Coffee Co., No. 3:19-cv-2457, 2020 WL 5732638, at *5 (N.D. Tex.
Aug. 24, 2020), report and recommendation adopted, No. 3:19-cv-2457, 2020
WL 5710245 (N.D. Tex. Sept. 24, 2020). Plaintiff received the required notice
by warning Plaintiff that failure to properly serve Defendants could result in
dismissal of his lawsuit under Rule 4(m). 	(See ECF Nos. 10, 12). 	Because
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Plaintiff has failed to properly serve Defendants and more than ninety days
have elapsed since he filed his Petition, the Court should dismiss this action.
See Gaivehchi v. Bierman, No. 3:19-cv-980, 2019 WL 6120137, at *1 (N.D. Tex.
Oct. 1, 2019), report and recommendation adopted, No. 3:19-cv-980, 2019 WL
6118563 (N.D. Tex. Nov. 15, 2019).
Dismissal is also warranted under Rule 41(b). 	Plaintiff has failed to
comply with a Court order directing him to show cause for his failure to serve
Defendants. 	Indeed, in nearly seven months, Plaintiff has made no apparent
effort to prosecute his case beyond filing his original Petition. 	By failing to
properly serve Defendants and comply with the Court’s order regarding service
of process, Plaintiff has prevented this action from proceeding. 	The Court
should therefore exercise its inherent power to prevent undue delays in the
disposition 	of 	pending 	cases 	and 	sua 	sponte 	dismiss 	this 	action 	without
prejudice. See Coe v. United States, No. 3:23-cv-1627, 2023 WL 9231455, at *2
(N.D. Tex. Dec. 21, 2023), report and recommendation adopted, No. 3:23-cv-
1627, 2024 WL 150441 (N.D. Tex. Jan. 12, 2024).
Due to Plaintiff’s failure to comply with a Court order, prosecute his case,
and properly serve Defendants, the Court should DISMISS this case without
prejudice.
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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 March 31, 2026.
______________________________
Richard W. Bennett
United States Magistrate Judge
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