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Tate v. Capital Bank

United States District Court, E.D. Michigan

March 26, 2018

LARRY TATE, Plaintiff,
v.
CAPITAL BANK, Defendant.

          BARNARD A. FRIEDMAN DISTRICT JUDGE

          REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S COMPLAINT (DE 1)

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION: The Court should DISMISS Plaintiff's complaint (DE 1) for his apparent failure to effect service of a summons and complaint upon Defendant Capital Bank in accordance with Fed.R.Civ.P. 4(m) and/or for Plaintiff's failure to show cause in accordance with the Court's December 27, 2017 (DE 9).

         II. REPORT

         A. Introduction

         On June 30, 2017, Plaintiff initiated this lawsuit in pro per in the Western District of Michigan, alleging that Defendant violated the Fair Credit Reporting Act (FCRA). (See 15 U.S.C. §§ 1681-1681x). His statement of claim is very brief:

I applied for insurance through Defendant, Capital Bank, in August 2016. Defendant violated the [FCRA] by providing Experian, Equifax, and Transunion inaccurate information in my credit report[, ] which caused my coverage to be denied. After being notified of the inaccurate information[, ] the Defendant failed to correct the information.

(DE 1 at 4.) Plaintiff seeks an order requiring Defendant “to correct the inaccurate information in [his] credit report[, ]” as well as an award of punitive damages. (Id.)

         Shortly after Plaintiff filed his complaint, Magistrate Judge Carmody entered an order to transfer the case to the Eastern District of Michigan. (DE 3.) On September 13, 2017, this Court entered an opinion and order granting Plaintiff's application to proceed in forma pauperis. (DEs 2, 5.) On the same date, the Clerk of this Court issued a summons for Capital Bank. (DE 6.) See Fed. R. Civ. P. 4(b).

         B. Show Cause Order

         Judge Friedman has referred this case to me for pretrial matters. As of December 27, 2017, Plaintiff had not filed a proof of service with the Court, Fed.R.Civ.P. 4(1); and, Defendant Capital Bank had not appeared. Thus, it appeared that Plaintiff had failed to effect service of a summons and complaint upon Defendant Capital Bank in accordance with Fed.R.Civ.P. 4(c), (e). Moreover, the 90-day time limit for service had passed. Fed.R.Civ.P. 4(m).

         For these reasons, I entered an order requiring Plaintiff to show cause why this case should not be dismissed for failure to comply with Fed.R.Civ.P. 4. (DE 9.) In particular, Plaintiff was “cautioned that a failure to comply with this order may result in the dismissal of the instant lawsuit.” (DE 9 at 2.)

         Plaintiff's written response was due “no later than January 22, 2018[.]” (DE 9 at 2 (emphasis in original).) As of the close of business on March 22, 2018, no such response had been filed.

         C. ...


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