Toliver #234877 v. De La Fuente et al
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)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Damien Lee Toliver,
Unknown De La Fuente, et al.,
At issue is United States Magistrate Judge James F. Metcalf’s Report and
Recommendation (Doc. 79) (“R&R”) that the Court dismiss Plaintiff’s claims in this
matter as against Defendants Parnell and Salcido only, without prejudice. The time for
Plaintiff to file a response or objection to the R&R expired on December 15, 2015, and
Plaintiff has filed no response or objection by that date or since. As Judge Metcalf
warned in the R&R, a failure to timely file objections to any findings or
recommendations of the Magistrate Judge is considered a waiver of a party’s right to de
novo consideration of the issues. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th
Cir. 2003) (en banc). Nonetheless, the District Court reviews the issues, the legal
reasoning and factual basis of Judge Metcalf’s R&R. Upon such review, the Court
concludes the R&R is sound in all respects, and the Court will follow its
As set forth in detail in the R&R, the Court extended the time for service of
Defendants Parnell and Salcido to the maximum date to effect service pursuant to
LRCiv. 16.2(b), and then extended the date nearly four more months beyond that
deadline. Plaintiff has been unable to effect service by the deadline or thereafter, and, as
the R&R concludes correctly, has not shown good cause or excusable neglect for that
failure to serve. The Court finds that there is a danger of prejudice to the unserved
Defendants as this matter has proceeded beyond the filing of dispositive motions, and
forcing defendants to join the matter now would make it nearly impossible for them to
participate meaningfully in defense of the claims. The length and impact of delay also
militates against a finding of excusable neglect. The case is now over two years old, and
service on both Defendants Parnell and Salcido was returned unexecuted more than seven
months ago, with no subsequent action. There appears no reason for the failure in service
other than simple neglect. And while the Court agrees with Judge Metcalf’s conclusion
that there is no indication of bad faith on Plaintiff’s part, on balance, the factors still
militate against a finding of excusable neglect.
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
Dated this 3rd day of May, 2016.
Honorable John J. Tuchi
United States District Judge
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