United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
Scott
T. Varholak, United States Magistrate Judge
This
matter is before the Court sua sponte upon
Plaintiff's failure to effect service on Defendants. For
the following reasons, this Court respectfully
RECOMMENDS that Plaintiff's claims be
DISMISSED WITHOUT PREJUDICE for failure to
prosecute.
Plaintiff
initiated this civil action on September 11, 2018, and
summonses were issued by the Clerk of Court on the same day.
[#4] Plaintiff has not filed a proof of service with the
Court with respect to any of the Defendants, as required by
Federal Rule of Civil Procedure 4(1). Plaintiff notes that
Defendants have a history of avoiding service, and Plaintiff
originally intended to file a motion for alternative service.
[#8 at 1] This Court held a status conference on January 31,
2019, at which Plaintiff's counsel updated the Court of
his efforts to serve Defendants and indicated that he would
likely file a motion for extension of time to serve
Defendants. [#12] This Court held a second status conference
on April 9, 2019. [#13] At the Status Conference,
Plaintiff's counsel informed the Court that he did not
believe service on Defendants would be possible, and
accordingly it would be in Plaintiff's best interest to
dismiss the case. [Id.] Accordingly, the Court
ordered Plaintiff's counsel to file a notice of dismissal
on or before April 23, 2019. [Id.] The Court
indicated that if counsel failed to do so, the Court would
issue a Recommendation that the case be dismissed for failure
to prosecute.
Pursuant
to Federal Rule of Civil Procedure 4(m):
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.
In
addition, Local Rule 41.1 provides:
A judicial officer may issue an order to show cause why a
case should not be dismissed for failure to prosecute or
failure to comply with these rules, the Federal Rules of
Civil Procedure, or a court order. If good cause is not
shown, a district judge or a magistrate judge exercising
consent jurisdiction may enter an order of dismissal with or
without prejudice.
D.C.COLO.LCivR 41.1.
Here,
the deadline for serving Defendants has long since elapsed
and Plaintiff has not sought an extension of time for
service, or sought to effectuate service of process by
alternative means. Though Plaintiff has noted difficulties in
attempting to serve Defendants, over four months have elapsed
since the service of process deadline and this case is still
not moving forward. Plaintiff also has not filed a notice of
dismissal as ordered by the Court. Accordingly, pursuant to
D.C.COLO.LCivR 41.1, the Court respectfully
RECOMMENDS that this action be
DISMISSED WITHOUT PREJUDICE for failure to
prosecute and failure to comply with the Court's April 9,
2019 Order [#13].[1]
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Notes:
[1] 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. 2121 East 30th Street, 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) (concluding that 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”);
Int'l Surplus Lines Ins. Co. v. Wyoming Coal Refining
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 ...