Locke v. Fedex Corp, et al.,

Filing 102

ORDER adopting Recommendations of United States Magistrate Judge. The Recommendation of United States Magistrate Judge [# 77 ] is APPROVED and ADOPTED as an order of this court, except to the extent this recommendation is modified in the recommendati on [# 87 ]. The Amended Recommendation of United States Magistrate Judge [# 87 ] is APPROVED and ADOPTED as an order of this court. The Claimant's Request for Leave To Serve/Re-Serve Defendant(s)Peterman, Stamm, Loftus, Moreland, Taliercio, and Jones [# 66 ] is GRANTED in part and DENIED in part. The plaintiff's claims against defendants, TonyTaliercio, Carl Peterman, Jeff W. Stamm, Bill Loftus, and Bob Moreland, areDISMISSED without prejudice. By 11/15/2013, defendant, FedEx Freight, Inc., SHALL PROVIDE to plaintiff, in writing, the most current address known to FedEx Freight, Inc. for defendant, Jon S. Jones. By 11/25/2013, the plaintiff SHALL PROVIDE to the clerk of this court contact information for defendant, Jon S. Jones, to permit the clerk to arrange for service of the amended complaint [# 42 ] on defendant, Jon S. Jones. By Judge Robert E. Blackburn on 11/4/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-00708-REB-MEH
ANTHONY D. LOCKE, an individual,
Plaintiff,
v.
FEDEX FREIGHT, INC.,
CARL PETERMAN,
JEFF W. STAMM,
BILL LOFTUS,
BOB MORELAND,
TONY TALIERCIO, and
JON S. JONES,
Defendants.

ORDER ADOPTING RECOMMENDATIONS OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Claimant’s Request for Leave
To Serve/Re-Serve Defendant(s) Peterman, Stamm, Loftus, Moreland, Taliercio,
and Jones [#66] filed April 25, 2013; (2) the Recommendation of United States
Magistrate Judge [#77]1 filed June 11, 2013; and (3) the Amended Recommendation
of United States Magistrate Judge [#87] filed August 1, 2013. I approve and adopt
both recommendations, deny the plaintiff’s motion in part, and grant it in part.
The plaintiff is proceeding pro se. Thus, I have construed his pleadings and other
filings more liberally and held them to a less stringent standard than formal pleadings

1

“[#53]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v.
Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
The defendant filed timely objections [#80] to the June 11, 2013,
recommendation [#77], but later withdrew those objections. See [#89]. The plaintiff did
not file timely objections to the June 11, 2013, recommendation. The plaintiff filed timely
objections [#92] to the August 1, 2013, recommendation [#87], and defendant FedEx
Freight, Inc. filed a response [#98] to those objections. In his objections [#92], the
plaintiff addresses also the June 11, 2013, recommendation. I disregard the plaintiff’s
objections to the June 11, 2013, recommendation because those objections are not
timely.
Because there are no timely objections to the June 11, 2013, recommendation, I
review it only for plain error. See Morales-Fernandez v. Immigration &
Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2 As required by 28
U.S.C. § 636(b), I have reviewed de novo all portions of the August 1, 2013,
recommendation to which the plaintiff objects. I have considered carefully the
recommendation, the objections, and the applicable case law.
Both of the recommendations concern the failure of the plaintiff to timely serve
several of the defendants. I agree with the conclusion of the magistrate judge that the
plaintiff has not demonstrated cause for mandatory or permissive extension of the
deadline for service of process on defendants, Taliercio, Peterman, Stamm, Loftus, and
Moreland, and I agree that the claims against these defendants must be dismissed

2

This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122.

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without prejudice under FED. R. CIV. P. 4(m). Further, I agree with the conclusion of the
magistrate judge that the plaintiff should be granted a brief extension of time to obtain
contact information for defendant, Jon Jones, and to provide that information to the clerk
of the court to facilitate service of process on Mr. Jones.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#77] filed
June 11, 2013, is APPROVED and ADOPTED as an order of this court, except to the
extent this recommendation is modified in the recommendation [#87] issued August 1,
2013;
2. That the Amended Recommendation of United States Magistrate Judge
[#87] filed August 1, 2013, is APPROVED and ADOPTED as an order of this court;
3. That the Claimant’s Request for Leave To Serve/Re-Serve Defendant(s)
Peterman, Stamm, Loftus, Moreland, Taliercio, and Jones [#66] filed April 25, 2013,
is GRANTED in part and DENIED in part, as stated in this order;
4. That under FED. R. CIV. P. 4(m), the plaintiff’s claims against defendants, Tony
Taliercio, Carl Peterman, Jeff W. Stamm, Bill Loftus, and Bob Moreland, are
DISMISSED without prejudice;
5. That defendants, Tony Taliercio, Carl Peterman, Jeff W. Stamm, Bill Loftus,
and Bob Moreland, are DROPPED as named defendants in this case, and the caption
shall be AMENDED accordingly;
6. That by November 15, 2013, defendant, FedEx Freight, Inc., SHALL
PROVIDE to plaintiff, in writing, the most current address known to FedEx Freight, Inc.
for defendant, Jon S. Jones; and
7. That by November 25, 2013, the plaintiff SHALL PROVIDE to the clerk of this
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court contact information for defendant, Jon S. Jones, to permit the clerk to arrange for
service of the amended complaint [#42] on defendant, Jon S. Jones;
Dated November 4, 2013, at Denver, Colorado.
BY THE COURT:

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