Toliver #234877 v. De La Fuente et al

Filing 95

ORDER: IT IS ORDERED adopting the Report and Recommendation (Doc. 79 ) in whole. IT IS FURTHER ORDERED dismissing this matter without prejudice as to Defendants Parnell and Salcido only. The matter shall proceed against the remaining Defendants. Signed by Judge John J Tuchi on 5/03/2016. (REK)

1

NOT FOR PUBLICATION

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Damien Lee Toliver,
Plaintiff,

10
11

ORDER

v.

12

No. CV-14-00335-PHX-JJT

Unknown De La Fuente, et al.,

13

Defendants.

14
15

At issue is United States Magistrate Judge James F. Metcalf’s Report and

16

Recommendation (Doc. 79) (“R&R”) that the Court dismiss Plaintiff’s claims in this

17

matter as against Defendants Parnell and Salcido only, without prejudice. The time for

18

Plaintiff to file a response or objection to the R&R expired on December 15, 2015, and

19

Plaintiff has filed no response or objection by that date or since. As Judge Metcalf

20

warned in the R&R, a failure to timely file objections to any findings or

21

recommendations of the Magistrate Judge is considered a waiver of a party’s right to de

22

novo consideration of the issues. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th

23

Cir. 2003) (en banc). Nonetheless, the District Court reviews the issues, the legal

24

reasoning and factual basis of Judge Metcalf’s R&R. Upon such review, the Court

25

concludes the R&R is sound in all respects, and the Court will follow its

26

recommendations.

27

As set forth in detail in the R&R, the Court extended the time for service of

28

Defendants Parnell and Salcido to the maximum date to effect service pursuant to

1

LRCiv. 16.2(b), and then extended the date nearly four more months beyond that

2

deadline. Plaintiff has been unable to effect service by the deadline or thereafter, and, as

3

the R&R concludes correctly, has not shown good cause or excusable neglect for that

4

failure to serve. The Court finds that there is a danger of prejudice to the unserved

5

Defendants as this matter has proceeded beyond the filing of dispositive motions, and

6

forcing defendants to join the matter now would make it nearly impossible for them to

7

participate meaningfully in defense of the claims. The length and impact of delay also

8

militates against a finding of excusable neglect. The case is now over two years old, and

9

service on both Defendants Parnell and Salcido was returned unexecuted more than seven

10

months ago, with no subsequent action. There appears no reason for the failure in service

11

other than simple neglect. And while the Court agrees with Judge Metcalf’s conclusion

12

that there is no indication of bad faith on Plaintiff’s part, on balance, the factors still

13

militate against a finding of excusable neglect.

14

IT IS ORDERED adopting the Report and Recommendation (Doc. 79) in whole.

15

IT IS FURTHER ORDERED dismissing this matter without prejudice as to

16

Defendants Parnell and Salcido only. The matter shall proceed against the remaining

17

Defendants.

18

Dated this 3rd day of May, 2016.

19
20
21
22

Honorable John J. Tuchi
United States District Judge

23
24
25
26
27
28

-2-