Marvin v. Phoenix Police Department et al

Filing 22

ORDER ACCEPTING REPORT AND RECOMMENDATION 19 - This matter is DISMISSED without prejudice. The Clerk shall terminate this action. (See document for further details). Signed by Judge Douglas L Rayes on 11/3/17. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Darrell Marvin,
Plaintiff,

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ORDER

v.

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No. CV-17-00504-PHX-DLR (BSB)

Phoenix Police Department, et al.,

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Defendants.

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Pending before the Court is the Report and Recommendation (R&R) of Magistrate

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Judge Bridget S. Bade regarding service of Plaintiff’s Second Amended Complaint.

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(Doc. 19.)

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After Plaintiff filed his Second Amended Complaint (Doc. 13), the Court ordered

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Plaintiff to complete and return the service packet to the Clerk of the Court within 21

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days, and further ordered the United States Marshal Service to serve Defendant Melin,

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(Doc. 14). The Court warned Plaintiff that if he did “not either obtain a waiver of service

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of the summons or complete service of the Summons and Second Amended Complaint

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on Defendant within 90 days of the filing of the Complaint or within 60 days of the filing

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of [the March 20, 2017] Order, whichever is later, the action may be dismissed.” (Id. at

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6-7 (citing Fed. R. Civ. P. 4(m).)

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On June 16, 2017, Plaintiff filed a motion for default judgment against Defendant.

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(Doc. 16.) On June 22, 2017, service on Defendant was returned unexecuted. The

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Process Receipt and Return states, “Return unexecuted—no such name on Phx Police

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Force per mail [or] phone contact w[ith] Department.” (Doc. 17.) On June 23, 2017,

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Magistrate Judge Bade issued an order denying the motion for default judgment and

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ordering Plaintiff to show cause why the case should not be dismissed for failure to serve.

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(Doc. 18.) Plaintiff failed to respond to the order to show cause.

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Because Plaintiff had no good cause for failing to serve Defendant within the time

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frames ordered, the R&R recommends that this matter be dismissed without prejudice for

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failure to serve pursuant to Fed. R. Civ. P. 4(m). Magistrate Judge Bade advised Plaintiff

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that he “shall have fourteen days from the date of service of a copy of this

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recommendation within which to file specific written objections with the Court.” (Doc.

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19 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72).)

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objection, arguing that he submitted the service packet as instructed, but he has not heard

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back from the Court. The Court, however, is not responsible for the fact that his Second

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Amended Complaint was not served. The Process Receipt and Return filed on June 22,

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2017 stated that the process server could not find, and therefore could not serve,

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Defendant.

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following day, notified Plaintiff that service on Defendant was returned unexecuted and

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afforded Plaintiff an opportunity to explain why the matter should not be dismissed for

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lack of service. Having failed to respond to the order to show cause, Plaintiff cannot now

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be heard to object to the dismissal of his complaint under Rule 4(m).

Plaintiff filed a timely

Moreover, Magistrate Judge Bade’s order to show cause, issued the

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For these reasons, the Court agrees with Magistrate Judge Bade’s determinations,

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accepts the recommended decision within the meaning of Rule 72(b), and overrules

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Plaintiff’s objection. See 28 U.S.C. § 636(b)(1) (stating that the district court “may

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accept, reject, or modify, in whole or in part, the findings or recommendations made by

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the magistrate”).

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//

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//

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//

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IT IS ORDERED that R&R (Doc.19) is accepted. This matter is DISMISSED
without prejudice. The Clerk shall terminate this action.
Dated this 3rd day of November, 2017.

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Douglas L. Rayes
United States District Judge

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