Schwartz. v. LiveOn NY
- Vyskocil
- 1:23-cv-04023
- U.S. District Court · Southern District of New York
- 2
In Schwartz v. LiveOn NY, Judge Vyskocil dismissed the action for failure to prosecute, allowing restoration by October 18, 2023.
Renee Schwartz's action against LiveOn NY was discontinued because LiveOn NY was not served and Schwartz did not provide the required written explanation. The action could be restored if she applied by October 18, 2023; otherwise, the dismissal would be with prejudice.
What happened
In Schwartz v. LiveOn NY, Renee Schwartz sued LiveOn NY, but the court found that LiveOn NY had not been served with the summons and complaint.
The court had ordered Schwartz to complete service by September 15, 2023, or explain in writing why service had not been made. Neither service nor a written explanation was filed.
Judge Mary Kay Vyskocil discontinued the action for failure to prosecute without costs and without prejudice to restoring it by October 18, 2023. If no restoration request was made by that date, the dismissal would be with prejudice.
The detailed version
- Schwartz. v. LiveOn NY · No. 1:23-cv-04023
- Vyskocil
- Sept. 18, 2023
Background
Renee Schwartz filed the complaint on May 16, 2023. The court reviewed its records and found that no proof had been filed showing service of the summons and complaint on LiveOn NY.
Service deadline and order to show cause
Federal Rule of Civil Procedure 4(m) generally requires service within 90 days after a complaint is filed. If service is not completed, the court may dismiss the action without prejudice or set a new service deadline. If the plaintiff shows good cause for the failure, the court must extend the service period.
On August 22, 2023, the court ordered Schwartz to serve LiveOn NY by September 15, 2023. The court also directed Schwartz to explain in writing why service had not been made, warning that the action would be dismissed for failure to prosecute if she neither completed service nor showed cause.
Ruling
The court found that LiveOn NY had still not been served and that Schwartz had not provided a written explanation. Judge Mary Kay Vyskocil therefore ordered that the action be discontinued for failure to prosecute, without costs to any party and without prejudice to restoring the action to the court's calendar if Schwartz applied by October 18, 2023. The order stated that if no application to restore was made by that date, the dismissal would be with prejudice.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.