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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 ...

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