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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Darrell Marvin, Plaintiff, 10 11 ORDER v. 12 No. CV-17-00504-PHX-DLR (BSB) Phoenix Police Department, et al., 13 Defendants. 14 15 16 Pending before the Court is the Report and Recommendation (R&R) of Magistrate 17 Judge Bridget S. Bade regarding service of Plaintiff’s Second Amended Complaint. 18 (Doc. 19.) 19 After Plaintiff filed his Second Amended Complaint (Doc. 13), the Court ordered 20 Plaintiff to complete and return the service packet to the Clerk of the Court within 21 21 days, and further ordered the United States Marshal Service to serve Defendant Melin, 22 (Doc. 14). The Court warned Plaintiff that if he did “not either obtain a waiver of service 23 of the summons or complete service of the Summons and Second Amended Complaint 24 on Defendant within 90 days of the filing of the Complaint or within 60 days of the filing 25 of [the March 20, 2017] Order, whichever is later, the action may be dismissed.” (Id. at 26 6-7 (citing Fed. R. Civ. P. 4(m).) 27 On June 16, 2017, Plaintiff filed a motion for default judgment against Defendant. 28 (Doc. 16.) On June 22, 2017, service on Defendant was returned unexecuted. The 1 Process Receipt and Return states, “Return unexecuted—no such name on Phx Police 2 Force per mail [or] phone contact w[ith] Department.” (Doc. 17.) On June 23, 2017, 3 Magistrate Judge Bade issued an order denying the motion for default judgment and 4 ordering Plaintiff to show cause why the case should not be dismissed for failure to serve. 5 (Doc. 18.) Plaintiff failed to respond to the order to show cause. 6 Because Plaintiff had no good cause for failing to serve Defendant within the time 7 frames ordered, the R&R recommends that this matter be dismissed without prejudice for 8 failure to serve pursuant to Fed. R. Civ. P. 4(m). Magistrate Judge Bade advised Plaintiff 9 that he “shall have fourteen days from the date of service of a copy of this 10 recommendation within which to file specific written objections with the Court.” (Doc. 11 19 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72).) 12 objection, arguing that he submitted the service packet as instructed, but he has not heard 13 back from the Court. The Court, however, is not responsible for the fact that his Second 14 Amended Complaint was not served. The Process Receipt and Return filed on June 22, 15 2017 stated that the process server could not find, and therefore could not serve, 16 Defendant. 17 following day, notified Plaintiff that service on Defendant was returned unexecuted and 18 afforded Plaintiff an opportunity to explain why the matter should not be dismissed for 19 lack of service. Having failed to respond to the order to show cause, Plaintiff cannot now 20 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 21 For these reasons, the Court agrees with Magistrate Judge Bade’s determinations, 22 accepts the recommended decision within the meaning of Rule 72(b), and overrules 23 Plaintiff’s objection. See 28 U.S.C. § 636(b)(1) (stating that the district court “may 24 accept, reject, or modify, in whole or in part, the findings or recommendations made by 25 the magistrate”). 26 // 27 // 28 // -2- 1 2 3 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. 4 5 6 7 8 Douglas L. Rayes United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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