Gamez #131401 v. Ryan et al

Filing 68

ORDER ADOPTING 65 REPORT AND RECOMMENDATION in whole; denying as moot Plaintiff's Motion for Clarification (Doc. 67 ), which the Court deems a Motion for Status. This matter is dismissed for failure to serve process and the Clerk shall close this case. Signed by Judge John J Tuchi on 9/27/16. (DXD)

1

NOT FOR PUBLICATION

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Robert Carrasco Gamez,
Plaintiff,

10
11
12

No. CV-13-01757-PHX-JJT
ORDER

v.
Charles L. Ryan, et al.,
Defendants.

13
14

At issue is the Report and Recommendation (“R&R”) filed by United States

15

Magistrate Judge Deborah Fine, recommending that the Court dismiss this matter for

16

Plaintiff’s failure to serve the remaining Defendant in this matter. (Doc. 65.) Plaintiff

17

timely filed an Objection to the R&R (Doc. 66), so the Court reviews the issue de novo.

18

Upon the review, the Court adopts the R&R in whole and will dismiss the matter for

19

failure to serve.

20

In the first five pages of his nearly six page Objection, Plaintiff faithfully and

21

accurately recounts the history of the inception of this action and his efforts to amend the

22

complaint and to serve Defendant Gatlin. But this is unhelpful in addressing the legal

23

issue upon which Judge Fine’s R&R is based—did Plaintiff exercise diligence in

24

attempting to serve Defendant. And the final two paragraphs of this Objection, while

25

arguing for more time, do not give the Court cause to further extend the deadline.

26

Plaintiff merely states conclusorily that he complied with Rule 4 of the Federal Rules of

27

Civil Procedure, and that rule should be liberally construed in his favor. But even a rule

28

1

liberally construed reaches a point where it can no longer be extended, and this case has

2

reached such a point.

3

Plaintiff has had over three years to effect service of Defendant Gatlin. He has had

4

multiple extensions, the assistance of the United States Marshal Service, and the power of

5

multiple subpoenas to discern her location. Defendant Gatlin was not an employee of the

6

Department of Corrections, and Plaintiff learned this after two years of trying to serve her

7

as such. He obtained Defendant Gatlin’s last known address after she had moved on from

8

her prior employment, and attempted to serve Defendant there, but she had moved on

9

from that address due to the passage of yet more time. Plaintiff’s argument (Doc. 64) that

10

he needs more time for service because service here is complex is without support. And

11

in any event, he has had multiples of the time afforded by Rule 4. It is time for repose in

12

this matter.

13

Also at issue is Plaintiff’s Motion for Clarification (Doc. 67), which the Court

14

construes as a Motion for status on the above R&R. The Court acknowledges that

15

Plaintiff’s Motion was commendably clear, professional in tone and entirely appropriate.

16

As Plaintiff explained, his past experiences in receiving correspondence and orders late

17

or not at all, coupled with the delay since the filing of the R&R and his Objections

18

thereto, understandably led Plaintiff to question whether he had missed a ruling on the

19

R&R and thus whether time might be running on other deadlines. This Court’s ruling on

20

the R&R constitutes the case status information Plaintiff sought in his Motion to Clarify.

21

The Court thus will deny the Motion as moot.

22

IT IS ORDERED adopting Judge Fine’s R&R (Doc. 65) in whole.

23

IT IS FURTHER ORDERED dismissing this matter for failure to serve process.

24

The Clerk of Court shall close this case.

25

///

26

///

27

///

28

///

-2-

1

IT IS FURTHER ORDERED denying as moot Plaintiff’s Motion for Clarification

2

(Doc. 67), which the Court deems a Motion for Status.

3

Dated this 27th day of September, 2016.

4
5
6

Honorable John J. Tuchi
United States District Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-