Hoffert v. Powelson et al

Filing 47

ORDER. The Order to Show Cause 36 is made ABSOLUTE. By Magistrate Judge Kristen L. Mix on 12/19/2011. Entry made pursuant to the Recommendation and Order of U.S. Magistrate Judge filed on 12/19/2011. (sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02382-LTB-KLM
PENNY HOFFERT,
Plaintiff,
v.
DAVID R. POWELSON,
POWER WORLD, LLC,
B.W.L. HOLDINGS, LLC,
B.W.L. PARTNERSHIP, LLLP,
TRAIL RIDGE MARINA,
FIVESTAR MARINA, INC.,
FIVESTAR RENTALS,
GRAND LAKE MOTOR SPORTS,
PHLARE ORGANIZATION, LLC,
GEEZER CLUBS, LLC,
TRI-R LEASING, LLC,
TRI-R SYSTEMS CORPORATION,
TRI-R HOLDINGS, LLC,
COLORADO SPRINGS WASTE AND RECYCLING, LLC,
DATAGUARD USA, LLC,
ATTICUS, INC., and
TRM, LLC,
Defendants.
_____________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court pursuant to the Order to Show Cause [Docket No.
36] issued on November 11, 2011. The Court ordered Plaintiff to show cause why it
“should not recommend that the case against Defendant Atticus, Inc. be dismissed
pursuant to Fed. R. Civ. P. 4(m) & 41(b).” Order to Show Cause [#36] at 2. Plaintiff was
directed to either (1) file proof of service on Defendant Atticus, Inc.; (2) respond in writing
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with an explanation of good cause for her failure to properly serve Defendant Atticus, Inc.;
or (3) provide a current address for Defendant Atticus, Inc. so as to allow the United States
Marshal to effect service. Id. Plaintiff’s deadline for compliance with the Order to Show
Cause [#36] was December 9, 2011. To date, Plaintiff has neither filed a response nor
informally contacted the Court in any manner.
Plaintiff filed this civil action on September 12, 2011 [#1]. The Amended Complaint
[#8] was filed on October 14, 2011. By an Order [#17] dated November 2, 2011, the United
States Marshal was directed to serve a copy of the Summons and Amended Complaint [#8]
on all Defendants in the above-captioned matter. On November 14, 2011, the Summons
was returned unexecuted as to Defendant Atticus, Inc. [#22]. The Return noted that “This
business is no longer in existence. Whereabouts of owner [is] unknown, according to
[Defendant] David Powelson.” Thus, no forwarding address was provided for Defendant
Atticus, Inc.
As the Court explained in its previous Order [#36], while Fed. R. Civ. P. 4(c) requires
that the Court effect service of the Summons and Complaint for a plaintiff proceeding in
forma pauperis, the plaintiff must provide sufficient information for the Court to do so. See
Hill v. Ortiz, No. 07-cv-00571-LTB-CBS, 2008 WL 2020289, at *6 (D. Colo. May 9, 2008)
(unpublished decision). The address provided by Plaintiff at the time of the Complaint’s
filing has not been sufficient to effect service on Defendant Atticus, Inc. Despite having
ample time to provide additional information about Defendant Atticus, Inc.’s address,
Plaintiff has not provided any information that the Court can use to effect service on
Defendant Atticus, Inc.
Plaintiff’s lawsuit was filed on September 12, 2011 [#1], and Plaintiff amended her
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Complaint on October 14, 2011 [#8]. Although the United States Marshal was not directed
to effect service until November 2, 2011, Plaintiff has not provided sufficient information to
enable the Marshal to serve Defendant Atticus, Inc. Moreover, Plaintiff failed to respond
to the Order to Show Cause [#36]. At this stage, it is clear that Plaintiff cannot provide the
necessary information to effect service on Defendant Atticus, Inc.
Although the Court may extend the time for a plaintiff to serve a defendant even
without a showing of good cause, Espinoza v. United States, 52 F.3d 838, 840-41 (10th
Cir.1995), the Court is not inclined to do so here. The case against Defendant Atticus, Inc.
has been pending since September 2011. Plaintiff failed to provide sufficient contact
information for the Court to effect service on Defendant Atticus, Inc. and failed to provide
good cause for the Court to find that an opportunity exists to cure the service deficiency in
the future. Further, Plaintiff was warned in advance that the penalty for the inability to
serve or for failing to provide good cause for the service delay would be dismissal of the
case against unserved Defendant Atticus, Inc. Order to Show Cause [#36]; see generally
Raeth v. Bank One, 05-cv-02644-WDM-BNB, 2008 WL 410596, at *3 & n.4 (D. Colo. Feb.
13, 2008) (unpublished decision). Accordingly,
IT IS HEREBY ORDERED that the Order to Show Cause [#36] is made
ABSOLUTE.
The Court respectfully RECOMMENDS that Defendant Atticus, Inc. be DISMISSED
without prejudice, pursuant to Fed. R. Civ. P. 4(m).
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of this Recommendation to serve and file any written
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objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party's failure to serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,
474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal
questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).

A party's objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73
F.3d 1057, 1060 (10th Cir. 1996).
Dated: December 19, 2011

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