Omara v. Thrailkill
United States District Court, D. Colorado
May 16, 2019
GREGORY OMARA, Plaintiff,
v.
LEAH THRAILKILL, in her individual capacity, HALEY LNU, in her individual capacity, JESSICA DONDERO, in her individual capacity, LYNN LNU, in her individual capacity, MARGARET WEAR, in her individual capacity, DIANA MCLAIN, in her individual capacity, RACHEL SEGERDAHL, in her individual capacity, TREVOR E., in his individual capacity, VANESSA LNU, in her individual capacity, JEREMY LNU, in his individual capacity, GREGORY VAN WYK, in his individual capacity, EAGLE COUNTY SHERIFF, in his official capacity, and CORRECT CARE SOLUTIONS, LLC, Defendants.
SUA SPONTE RECOMMENDATION TO DISMISS UNSERVED
DEFENDANTS
Gordon
P. Gallagher, United States Magistrate Judge.
This
matter comes before the Court sua sponte. This is a
Recommendation.[1] The Court has considered the entire case
file, the applicable law, and is sufficiently advised in the
premises. This Magistrate Judge respectfully recommends that
the listed Defendants who have not been served be dismissed
at this time.
Plaintiff
filed his amended complaint (ECF #7[2]) in this action on October
18, 2018. Plaintiff lists thirteen (13) Defendants. To date,
Plaintiff has served Defendant Gregory Van Wyk and the Eagle
County Sheriff. The Board of County Commissioners of Eagle
County was terminated as a Defendant on October 18, 2018. The
remaining Defendants are unserved.
On
March 8, 2019, the Court, sua sponte, issued the
following minute order found at ECF #47:
MINUTE ORDER: Pursuant to Federal Rule of Civil Procedure
4(c) & (m), Plaintiff SHALL show cause within twenty-one
(21) days as to why all unserved Defendants should not be
dismissed from this action without prejudice. Plaintiff is
specifically advised that, should he fail to show good cause
for the failure to serve said Defendants, the Court must
dismiss the action without prejudice against that
defendant... Rule 4(m). The Clerk of Court Shall insure that
Plaintiff is mailed a copy of this Order. So Ordered. by
Magistrate Judge Gordon P. Gallagher on 3/8/2019. Text Only
Entry (GPG) (Entered: 03/08/2019)
The
certificate showing service is filed at ECF #49. Plaintiff
failed to respond to the show cause order and the remaining
Defendants are still unserved.
Federal
Rule of Civil Procedure 4(m) states:
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. This subdivision
(m) does not apply to service in a foreign country under Rule
4(f), 4(h)(2), or 4(j)(1), or to service of a notice under
Rule 71.1(d)(3)(A).
In this
matter, 90 days expired on 1/16/2019. Plaintiff was given an
opportunity to show cause as to the failure to serve-and
failed to respond in any fashion. Further, Plaintiff was
specifically advised that failing to show cause for lack of
service would result in dismissal as to each Defendant who
had not been served. See Ehrenhaus v. Reynolds, 965
F.2d 916, 922 (10thCir. 1992).
At this
juncture, this Magistrate Judge respectfully recommends
dismissal of this action as to each of the following
Defendants, without prejudice:
LEAH THRAILKILL, in her individual capacity,
HALEY LNU, in her individual capacity,
JESSICA DONDERO, in her individual ...