Gibson v. Sternes et al

Filing 22

ORDER - The Report and Recommendation (Doc. 20 ) is REJECTED. The Clerk of Court must send Plaintiff a service packing including the First Amended Complaint (Doc. 11 ), the January 16, 2015 Service Order (Doc. 13 ), and both summons and request f or waiver forms for Defendant Khalaf. The United States Marshal must notify Defendant of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defen dant must include a copy of the January 16, 2015 Service Order. This matter remains referred to Magistrate Judge Bridget S. Bade pursuantto Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). Signed by Judge Douglas L Rayes on 4/30/15. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Agwu Gibson,

No. CV-14-8156-PCT-DLR (BSB)
Plaintiff,

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v.

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ORDER

Jerry L. Sternes, et al.,

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Defendants.

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On April 13, 2015, Magistrate Judge Bridget S. Bade issued a Report and

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Recommendation (“R & R”) recommending this action be dismissed without prejudice

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based on Plaintiff’s failure to notify the Court of his current address. (Doc. 20).1 On

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April 23, 2015, Plaintiff filed a Notice of Party’s Change of Address.

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Accordingly, the R & R will be rejected and the Court will give Plaintiff an opportunity

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to complete service.

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IT IS ORDERED:

(Doc. 21).

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(1)

The Report and Recommendation (Doc. 20) is REJECTED.

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(2)

Defendant Khalaf must answer Count Two of the First Amended

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Complaint. All other claims and Defendants are dismissed without prejudice.
(3)

The Clerk of Court must send Plaintiff a service packing including the First

Amended Complaint (Doc. 11), the January 16, 2015 Service Order (Doc. 13), and both

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Plaintiff was never mailed a copy of the R & R because multiple attempts had
been made to send him copies of the January 16, 2015 Service Order (Doc. 13) and the
March 6, 2015 Order to Show Cause (Doc. 16) which were returned as undeliverable.

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summons and request for waiver forms for Defendant Khalaf.
(4)

Plaintiff must complete and return the service packet to the Clerk of Court

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within 21 days of the date of filing of this Order. The United States Marshal will not

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provide service of process if Plaintiff fails to comply with this Order.

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(5)

If Plaintiff does not either obtain a waiver of service of the summons or

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complete service of the Summons and First Amended Complaint on Defendant within

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120 days of the filing of the Complaint or within 60 days of the filing of this Order,

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whichever is later, the action may be dismissed.

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16.2(b)(2)(B)(ii).

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(6)

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Fed. R. Civ. P. 4(m); LRCiv

The United States Marshal must retain the Summons, a copy of the First

Amended Complaint, and a copy of the January 16, 2015 Service Order for future use.
(7)

The United States Marshal must notify Defendant of the commencement of

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this action and request waiver of service of the summons pursuant to Rule 4(d) of the

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Federal Rules of Civil Procedure. The notice to Defendant must include a copy of the

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January 16, 2015 Service Order.

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The Marshal must immediately file signed waivers of service of the summons.

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If a waiver of service of summons is returned as undeliverable or is not returned by

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Defendant within 30 days from the date the request for waiver was sent by the

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Marshal, the Marshal must:

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(a)

personally serve copies of the Summons, First Amended Complaint,

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and the January 16, 2015 Service Order upon Defendant pursuant to Rule

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4(e)(2) of the Federal Rules of Civil Procedure; and

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(b)

within 10 days after personal service is effected, file the return of

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service for Defendant, along with evidence of the attempt to secure a waiver of

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service of the summons and of the costs subsequently incurred in effecting service

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upon Defendant. The costs of service must be enumerated on the return of service

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form (USM-285) and must include the costs incurred by the Marshal for

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photocopying additional copies of the Summons, First Amended Complaint, or the

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January 16, 2015 Service Order and for preparing new process receipt and

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return forms (USM-285), if required. Costs of service will be taxed against the

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personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil

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Procedure, unless otherwise ordered by the Court.

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(8)

If Defendant agrees to waive service of the Summons and First

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Amended Complaint, he must return the signed waiver forms to the United States

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Marshal, not the Plaintiff.

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(9)

Defendant must answer the First Amended Complaint or otherwise respond

by appropriate motion within the time provided by the applicable provisions of Rule
12(a) of the Federal Rules of Civil Procedure.
(10)

This matter remains referred to Magistrate Judge Bridget S. Bade pursuant

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to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings

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as authorized under 28 U.S.C. § 636(b)(1).

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Dated this 30th day of April, 2015.

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Douglas L. Rayes
United States District Judge

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