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Harrington v. Livery Holdings, LLC

United States District Court, D. Colorado

April 24, 2019

BLAINE HARRINGTON, III, Plaintiff,
v.
LIVERY HOLDINGS, LLC, LIVERYLEADS.COM, LLC, and BRANDON KROLL, Defendants.

          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 ...


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