Tufano v. Fenix Internet LLC

OCR transcription for search; preserved printed pages are authoritative

Case 3:25-cv-00976-JKM Document17 Filed 10/15/26 Page1of3

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FRANK TUFANO, E No. 3:25cv976
Plaintiff :
(Judge Munley)

V.

FENIX INTERNET LLC (DBA
ONLYFANS),
Defendant

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EUR

On June 2, 2025, Plaintiff Frank Tufano filed suit against Defendant Fenix
Internet LLC (“Fenix”) at the above docket number. (Doc. 1). Before the court is
a report and recommendation (“R&R”) from United States Magistrate Judge
Phillip J. Caraballo, which recommends that Tufano’s complaint be dismissed
without prejudice under Federal Rule of Civil Procedure 4(m) for failure to serve
the defendant. (Doc. 15).

Tufano responded to the R&R with objections, asserting that he served the
defendant on Wednesday, September 9, 2026.' (Doc. 16). In support, plaintiff

attaches a proof of service form indicating that a process server left a copy of a

1 Based on the nature of Tufano’s objections, the matters within the R&R are subject to de
novo review. 28 U.S.C. § 636(b)(1)(C); Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983).

Case 3:25-cv-00976-JKM Document17 Filed 10/15/26 Page 2of3

complaint and summons with a registered agent for Fenix in Wilmington,
Delaware. (Doc. 16-1). That proof of service form is deficient.

Specifically, the proof of service form filed by Tufano contains a civil case
number of 25-CV-3931. Id. That case number does not correspond to the case
number assigned to this action or any matter filed in the United States District
Court for the Middle District of Pennsylvania last year. According to records
maintained by the Clerk of Court, case number 25-CV-3931 was assigned by the
Lackawanna County Court of Common Pleas to a different action filed by Tufano
against Fenix in state court on May 27, 2025. See No. 3:25-cv-1165, (Doc. 1,
Notice of Removal; Doc. 1-2, State Court Filings). Fenix removed that action to
the Middle District of Pennsylvania on June 26, 2025. Id.

The court can only conclude that the proof of service form provided by
Tufano corresponds to case number 3:25-cv-1165, not the instant matter at case
number 3:25-cv-976. Tufano’s exhibit does not demonstrate that Fenix has been
served with the complaint and summons corresponding to this case.

Under the Federal Rules of Civil Procedure, the court is permitted to
dismiss an action without prejudice—after notice to the plaintiff—if a defendant is
not served within 90 days of the complaint being filed. FED. R. Clv. P. 4(m). A
summons was issued in this matter on April 8, 2026, just over 180 days ago.

(Doc. 10). Magistrate Judge Caraballo issued show cause orders on July 28,

Case 3:25-cv-00976-JKM Document17 Filed 10/15/26 Page 3of3

2026 (the 111-day mark) and September 3, 2026 (the 148-day mark), which
directed Tufano to provide proof of service. (Docs. 12, 14). The orders warned
Tufano that the case was subject to dismissal under Rule 4(m) in the absence of
appropriate proof. Id.

Although the proof of service form is dated September 9, 2026, (Doc. 16-1),
Tufano did not file that proof of service—defective as it is—or otherwise respond
to the last show cause order until after Magistrate Judge Caraballo issued the
R&R on October 1, 2026.7

Consequently, it is hereby ORDERED that:

1) Plaintiff's objections to the R&R, (Doc. 16), are OVERRULED;

2) The R&R, (Doc. 15), is ADOPTED in its entirety;

3) Plaintiff's complaint, (Doc. 1), is DISMISSED without prejudice; and

4) The Clerk of Court is directed to close this case.

Y THE COURT:

Date: lise b

/ \ a
JWDGE JULIA K. MUNLEY
nited |States Distri rt

? In his objections, Tufano asserts that the magistrate judge ignored his proof of service filings.
(Doc. 16 4). Review of the docket in this case discredits that statement.

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