MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE
Judge Mannion
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE
I. Statement of Facts and of the Case
This is a strange case which calls to mind Einstein's observation that doing the same thing over and over again, but expecting different results, is the highest form of folly.
The plaintiff, Paul Pieczynski, was apparently convicted in state court in the Court of Common Pleas of Luzerne County of various state offenses between 2009 and 2017. See Commonwealth v. Pieczynski, CP-40-CR-0002526-2009; Commonwealth v. Pieczynski, CP-40-CR-0002751-2009; Commonwealth v. Pieczynski, CP-40-CR-0002070-2016; Commonwealth v. Pieczynski, CP-40-CR-0002993-2017. At some time following these state court convictions, it appears that Pieczynski came to embrace the eccentric, and legally unsupported, notion that he could somehow engage in an “arbitration” of these criminal case outcomes. Pieczynski then alleges that he indulged in some type of idiosyncratic arbitration proceedings. According to Pieczynski, this “arbitration” went far more favorably than his criminal cases since court records indicate that Pieczynski was convicted in his state cases, but Pieczynski avers that he received a $26,800,000 arbitration award in his favor.
Pieczynski has spent the past several years engaging in a quixotic journey to enforce what he believes to be this multi-million dollar arbitration award. Initially he pursued these efforts in federal court by filing a miscellaneous action and paying a $47 filing fee. The district court refused to accept this filing and advised Pieczynski that he would need to pay the full filing fee for a civil lawsuit if he wished to litigate this claim. When Pieczynski refused to follow this direction, the court dismissed his case and Pieczynski appealed to the United States Court of Appeals for the Third Circuit. The Court of Appeals then affirmed the District Court's judgment dismissing Pieczynski's case. Pieczynski v. Commonwealth of Pennsylvania, No. 21-1960, 2021 WL 5745694, at *2 (3d Cir. Dec. 2, 2021). Undeterred, Pieczynski sought United States Supreme Court review of his arbitration claim, but the Supreme Court declined to accept certiorari review of his case. Pieczynski v. Pennsylvania, 214 L.Ed.2d 32, 143 S.Ct. 121 (2022), reh'g denied, 214 L.Ed.2d 269, 143 S.Ct. 473 (2022).
Pieczynski has now renewed his efforts to enforce this farcical arbitration award by filing yet another motion to confirm arbitration award with the court on December 22, 2022 and paying the full filing fee. (Doc. 1). This case was referred to the undersigned and we observed that Pieczynski had made no effort to serve his curious pleading upon the defendants named in that document. Accordingly, on February 1, 2023, we entered an order which instructed Pieczynski in clear and precise terms as follows:
The plaintiff is placed on notice that it is the plaintiff's responsibility to serve the defendants named in the complaint within 90 days, and thus service of the complaint should have been made no later than
March 22, 2023 .
See Rule 4, F. R. Civ. P. In addition to setting time limits for service,
Rule 4 prescribes the sanction of dismissal for the failure to make proper and timely service, stating as follows:
(m) Time Limit for Service. 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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
F. R Civ. P.,
Rule 4(m).
The language of
Rule 4(m) is both clear and mandatory. Where there is an unjustified and unexcused failure to timely serve a complaint the court “must dismiss the action.” Accordingly, the plaintiff is placed on notice of this deadline and is directed to make service, or show cause why this matter should not be dismissed without prejudice for failure to affect proper service of the complaint on or before
March 22, 2023.
(Doc. 2).
Despite this notice, the plaintiff has taken no steps to perfect service of process in this case. Instead, he has filed an objection to our order instructing him that he must serve the opposing parties in this litigation, asserting that: “It appears the Court is unfamiliar or confused ....” (Doc. 4). While we are certainly unfamiliar with any legal procedure that allows a convicted state court defendant to use an arbitration process to effectively set aside his convictions and secure a multi-million-dollar financial windfall, and we find his claims unintelligible and confusing, in our view nothing excuses Pieczynski from fulfilling his legal duty to serve those against whom he asserts a $26,800,000 claim. Accordingly, for the reasons set forth below, it is recommended that the complaint be dismissed without prejudice.
II. Discussion
A. Rule 4 Calls for Dismissal of This Complaint.
Dismissal of this pleading is warranted here. Simply put, the failure to properly serve this filing now compels this outcome under the Federal Rules of Civil Procedure. In particular, this result is mandated by Rule 4 of the Federal Rules of Civil Procedure, which prescribes the method by which service can be made and describes how a party must demonstrate proof of service on the record. See Fed.R.Civ.P. 4(a)-(1). Rule 4 also sets time limits for service and prescribes the sanction of dismissal for the failure to make proper and timely service, stating as follows:
(m) Time Limit for Service. 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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m).
The language of Rule 4(m) is both clear and mandatory. Where there is an unjustified and unexcused failure to timely serve a complaint, the court “must dismiss the action.” As a general rule, “the party asserting the validity of service bears the burden of proof on that issue.” Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993) (citing 4A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1083 (1987)). When the plaintiff fails to carry this burden of proof on the issue of proper and timely service, consistent with Rule 4(m)'s mandate that the “court-on motion or on its own after notice to the plaintiff-must dismiss the action,” dismissal of the case is entirely appropriate. Indeed, when a plaintiff does not show good cause for a failure to serve, Beckerman v. Susquehanna Township Police, 254 Fed.Appx. 149, 154 (3d Cir. 2007), or fails to make service, despite warnings and requests by the court to address service issues, Foster v. Pennsylvania Human Relations Comm'n, 157 Fed.Appx. 488, 490 (3d Cir. 2005), the courts have frequently dismissed actions for failure to make service.
These principles control here and call for dismissal of this action for failure to make timely and proper service. In this case, the plaintiff has provided no proof of proper service more than four months after this action commenced, despite having been instructed to do so. Moreover, our prior show cause order regarding service notified the plaintiff of her obligation to serve the defendants within 90 days of the filing of this action and instructed the plaintiff to make service or show cause on or before March 22, 2023, why this matter should not be dismissed without prejudice for failure to affect proper service of the complaint. (Doc. 7). Despite this notice and warning, the plaintiff has neither served the defendants, nor sought a further extension of time in which to make service. Instead, Pierzynski takes the novel and unsupportable position that he is not required to serve the persons named in his filing before seeking the entry of a $26,800,000 judgment against them. Given this cascading array of failures, dismissal is appropriate here. Beckerman, 254 Fed.Appx. at 154 (affirming dismissal for failure to serve two days after service deadline elapsed where no good cause shown).
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the Plaintiff's case be dismissed without prejudice for the failure to make timely service under Rule 4.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within
fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.