Stephan Brooks v. Paco-Michelle Atwood et al
Filing
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ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge John F. Walter 67 . The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment be entered: (1) dismiss ing the action against the non-appearing Defendants without prejudice in accordance with this Order; and (2) otherwise dismissing the action in accordance with the previous Orders filed 6/20/16 and 1/5/17. (Attachments: # 1 Report and Recommendation) (sp)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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STEPHAN BROOKS, et al.,
) NO. CV 15-7724-JFW(E)
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Plaintiff,
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v.
) REPORT AND RECOMMENDATION OF
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PACO-MICHELLE ATWOOD, et al., ) UNITED STATES MAGISTRATE JUDGE
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Defendants.
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______________________________)
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This Report and Recommendation is submitted to the Honorable
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John F. Walter, United States District Judge, pursuant to 28 U.S.C.
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section 636 and General Order 05-07 of the United States District
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Court for the Central District of California.
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BACKGROUND
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Plaintiff Stephan Brooks filed this action individually and as:
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(1) alleged successor trustee to the Sireaner Townsend Revocable
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Living Trust dated June 22, 2004 (“Trust”); (2) alleged sole
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beneficiary of the Trust; (3) alleged sole heir of the Sireaner
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Townsend Pour Over Will dated June 22, 2004; and (4) alleged heir to
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the estate of Sherrell Atwood.
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family dispute concerning residential real property which resulted in
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state court litigation, including a probate case concerning the
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Sherrell Atwood estate (“Estate Case”), a “Trust Case,” a “Will
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Contest Case” and a “Partition Case.”
Plaintiff’s claims arise out of a
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The original Complaint purported to state civil rights claims and
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state law claims against: (1) Plaintiff’s sister Paco-Michelle Atwood,
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individually and as alleged administrator of the estate of Sherrell
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Atwood; (2) Chrisangela Walston, allegedly an attorney for Atwood in
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the “Estate Case” and the “Partition Case”; (3) L’Tanya M. Butler,
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allegedly an attorney for Atwood in the state court cases; (4) Maurice
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Smith, Clifford Townsend, Jr. and Steven Townsend, the three
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petitioners in the “Trust Case” and “Will Contest” cases; (5) Guy
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Leemhuis, allegedly the attorney for Smith and the two Townsends;
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(6) Jonnie Johnson Parker, allegedly the attorney for Plaintiff
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individually and as alleged successor trustee in the “Trust Case”; and
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(7) ten fictitious “Doe” Defendants.
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Plaintiff alleged that the Defendants named in that pleading conspired
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with lawyers and judges to deprive Plaintiff of the right to the
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property, which allegedly previously was owned jointly by Plaintiff’s
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mother, Sherrell Atwood, and grandmother, Sireaner Townsend, both now
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deceased.
In the original Complaint,
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On December 8, 2015, Defendants Atwood, Butler and Walston filed
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a motion to dismiss the Complaint.
On January 8, 2016, Plaintiff
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filed an opposition to that motion.
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On January 19, 2016, the Court
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issued an “Order Dismissing Complaint With Leave to Amend,” dismissing
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the Complaint with leave to amend and permitting Plaintiff to file a
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First Amended Complaint.
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Plaintiff did not file a First Amended Complaint by the deadline
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set in the January 19, 2016 Order.
Accordingly, on March 3, 2016, the
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Magistrate Judge issued a Report and Recommendation recommending
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dismissal of the action without prejudice for failure to prosecute.
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On March 21, 2016, Plaintiff filed objections to the Report and
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Recommendation.
On March 22, 2016, the Magistrate Judge issued a
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Minute Order withdrawing the Report and Recommendation and extending
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the time within which Plaintiff could file a First Amended Complaint.
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Plaintiff filed a First Amended Complaint on April 5, 2016, naming the
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original Defendants and adding two new Defendants: (1) Los Angeles
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County Superior Court Executive Officer/Clerk Sherri Carter; and
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(2) Joseph A. Lane, Clerk of the California Court of Appeal, Second
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District.
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On April 7, 2016, Defendants Atwood, Butler and Walston filed a
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motion to dismiss the First Amended Complaint.
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Plaintiff filed an opposition to this motion.
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Magistrate Judge issued a Report and Recommendation recommending that
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the Court: (1) dismiss the First Amended Complaint and the action as
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against private party Defendants Atwood, Walston, Butler, Maurice
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Smith, Clifford Townsend, Jr., Steven Townsend, Guy A. Leemhuis, and
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///
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///
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On May 4, 2016,
On May 13, 2016, the
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Jonnie Johnson Parker,1 with prejudice with respect to the federal
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claims; and (2) decline to exercise supplemental jurisdiction over the
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state law claims against the private party Defendants and dismiss
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those state law claims against the private party Defendants without
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prejudice.
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On May 17, 2016, Defendants Carter and Lane filed a Motion to
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Dismiss the First Amended Complaint.
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On June 16, 2016, Plaintiff
filed an Opposition.
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On June 20, 2016, the District Judge issued an “Order Accepting
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Findings, Conclusions and Recommendations of United States Magistrate
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Judge.”
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and Recommendation, dismissing from the action all Defendants other
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than Defendants Carter and Lane.
This Order adopted the Magistrate Judge’s May 13, 2016 Report
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On June 28, 2016, the Magistrate Judge issued a Report and
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Recommendation addressing the Motion to Dismiss filed by Defendants
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Carter and Lane and inter alia recommending dismissal of the First
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Amended Complaint as against the Defendants with leave to amend.
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Among other things, the Report and Recommendation advised Plaintiff
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that the doctrine of quasi-judicial immunity shielded Defendants
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Carter and Lane from liability for actions taken in their capacities
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Although Defendants Maurice Smith, Clifford Townsend,
Jr., Steven Townsend, Guy A. Leemhuis and Jonnie Johnson Parker
had not appeared in the action, the same reasons supporting
dismissal of the First Amended Complaint as against the appearing
private party Defendants supported dismissal of the First Amended
Complaint and the action as against Defendants Smith, Clifford
Townsend, Jr., Steven Townsend, Leemhuis and Parker.
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as court clerks when they perform tasks that are an integral part of
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the judicial process.
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“Order Accepting Findings, Conclusions and Recommendations of United
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State Magistrate Judge,” dismissing the First Amended Complaint as
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against Defendants Carter and Lane with leave to amend.
On August 5, 2016, the District Judge issued an
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On September 6, 2016, Plaintiff filed a Second Amended Complaint
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against Defendants Carter and Lane, and adding as Defendants: (1) Los
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Angeles County Superior Court Judges Beckloff, Cowan, Levanas and
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Stratton; (2) California Court of Appeal Justices Epstein, Willhite
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and Collins; and (3) the County of Los Angeles (“County”).
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On September 21, 2016, Defendants Carter and Lane filed a Motion
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to Dismiss the Second Amended Complaint.
On October 21, 2016,
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Plaintiff filed an Opposition to the Motion to Dismiss.
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On November 29, 2016, the Magistrate Judge issued a Report and
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Recommendation recommending the dismissal of the action as against
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Defendants Carter and Lane without leave to amend and with prejudice
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as to Plaintiff’s federal claims and without prejudice as to
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Plaintiff’s state law claims.
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issued an “Order Accepting Findings, Conclusions and Recommendations
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of United States Magistrate Judge.”
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Judge’s November 29, 2016 Report and Recommendation, dismissing from
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the action Defendants Carter and Lane.
On January 5, 2017, the District Judge
This Order adopted the Magistrate
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The only other Defendants named in the Second Amended Complaint
are: (1) Los Angeles Superior Court Judges Mitchell L. Beckloff, David
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J. Cowan, Michael I. Levanas and Maria E. Stratton;
(2) California
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Court of Appeal Justices Normal L. Epstein, Audrey B. Collins and
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Thomas L. Willhite; and (3) the County of Los Angeles.
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Defendants (“non-appearing Defendants”)
None of these
have appeared in this action.
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On December 8, 2016, the Magistrate Judge filed a Minute Order
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requiring Plaintiff to show cause, within thirty (30) days of the
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December 8, 2016, why proper service of the Summons and Second Amended
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Complaint was not made on the non-appearing Defendants in a timely
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manner.
The Minute Order advised Plaintiff that Plaintiff must
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attempt to show such cause by filing a declaration, signed under
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penalty of perjury.
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failure to file such a declaration could result in the dismissal of
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the action as to the non-appearing Defendants without prejudice.
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Nevertheless, Plaintiff failed to respond to the Minute Order within
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the allotted time.
The Minute Order further advised Plaintiff that
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DISCUSSION
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Under Rule 4(m) of the Federal Rules of Civil Procedure, a court
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may dismiss an action without prejudice if the summons and complaint
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are not served on the defendant within 90 days after filing the
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complaint or such further time as ordered by the court.
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P. 4(m); see Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007).
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Rule 4(m) requires the Court to extend the time for service if a
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plaintiff shows good cause for the failure to serve.
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‘good cause’ means excusable neglect.”
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754, 756 (9th Cir. 1991).
Fed. R. Civ.
“At a minimum,
Boudette v. Barnette, 923 F.2d
A court has “broad discretion” to extend
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the time for service under Rule 4(m), even absent a showing of good
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cause.
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States v. 2,164 Watches, More or Less, Bearing a Registered Trademark
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of Guess?, Inc., 366 F.3d 767, 773 (9th Cir. 2004) (Rule 4(m) gives
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courts “leeway to preserve meritorious lawsuits despite untimely
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service of process”).
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prejudice to the defendant, actual notice, a possible limitations bar,
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and eventual service.
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such dismissal should be without prejudice.
See Efaw v. Williams, 473 F.3d at 1040-41; see also United
A court may consider various factors including
See Efaw v. Williams, 473 F.3d at 1041.
Any
See United States v.
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2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?,
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Inc., 366 F.3d at 772.
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Under Rule 4(m), this Court should dismiss the present action as
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against the non-appearing Defendants without prejudice.
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not demonstrated good cause for the failure to effect timely service
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on these remaining Defendants, and no cause appears from the record.
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Under the circumstances of this case, the Court should not exercise
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its “broad discretion” to extend the time for service.
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Grattan Township, 2007 WL 1108566, at *4 (W.D. Mich. April 10, 2007)
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(observing that extension of the deadline for service on a defendant
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who was the trial judge would be futile because claims against the
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judge would be barred by the doctrine of judicial immunity).
Plaintiff has
See Kennedy v.
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RECOMMENDATION
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For all of the foregoing reasons, it is recommended that the
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Court issue an Order: (1) accepting and adopting this Report and
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Recommendation; (2) dismissing the action against the non-appearing
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Defendants without prejudice; and (3) directing that Judgment be
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entered dismissing the action in accordance with the present
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recommended Order and the previous Orders filed June 20, 2016 and
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January 5, 2017.
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Dated: January 11, 2017.
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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE
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NOTICE
Reports and Recommendations are not appealable to the Court of
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Appeals, but may be subject to the right of any party to file
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objections as provided in the Local Rules Governing the Duties of
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Magistrate Judges and review by the District Judge whose initials
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appear in the docket number.
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Federal Rules of Appellate Procedure should be filed until entry of
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the judgment of the District Court.
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No notice of appeal pursuant to the
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