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Norris v. Fisher

United States District Court, Tenth Circuit

December 12, 2013

TODD NORRIS, Plaintiff,
v.
RICHARD FISHER, individually, as an employee operating under the color of law for the Buena Vista Correctional Complex, CAROL MCCORMACK, individually, as an employee operating under the color of law for the Buena Vista Correctional Complex, and TIMOTHY VAUGHN, individually, as an employee operating under the color of law for the Buena Vista Correctional Complex. Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KATHLEEN M. TAFOYA, Magistrate Judge.

This case comes before the court on Plaintiff's failure to respond to the Order to Show Cause regarding his failure to timely serve Defendants. (Doc. No. 34, filed Nov. 14, 2013.)

Pursuant to Fed.R.Civ.P. 4(m),
If a defendant is not served within 120 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. Defendants Richard Fisher, Carol McCormack, and Timothy Vaughn were first

named as defendants in Plaintiff's Amended Complaint, filed July 12, 2013.[1] (Doc. No. 29.) As such, Plaintiff was required to serve these Defendants no later than November 12, 2013.[2] There is no indication, however, that service on Defendants has been effectuated. On November 14, 2013, the court ordered Plaintiff to show cause in writing, on or before November 26, 2013, why his Amended Complaint should not be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m) for lack of service. (Doc. No. 45.) Plaintiff has not responded to the Order to Show Cause to provide further information about his efforts to serve Defendants.

Rule 4(m) authorizes the court to dismiss a case against unserved defendants unless the plaintiff can show good cause for his failure to serve. Here, Plaintiff has failed to provide good cause for his failure to timely serve Defendants.

WHEREFORE, for the foregoing reasons, I respectfully

RECOMMEND that Plaintiff's Amended Complaint (Doc. No. 29) be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m) for lack of service.

ADVISEMENT TO THE PARTIES

Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge=s proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego , 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla. , 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers , 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge=s recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Prop. , 73 F.3d at 1059-60 (a parts's objections to the magistrate judge"s report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc. , 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States , 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS , 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).


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