Johnson v. Myelin Productions

Filing 68

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re: 63 Order to Show Cause; It is hereby ORDERED that the Order to Show Cause 63 is made ABSOLUTE. The Court respectfully RECOMMENDS that the claims against Defendants Myelin Productio ns, Axum 21st Group Global, Richard Vaz, Summer Brooke, Frances Vaz, Sabrina Vaz, Krista Cox and Chelsea Humphreys be DISMISSED without prejudice, by Magistrate Judge Kristen L. Mix on 4/3/2013. (klmcd, )(Modified on 4/4/2013 This has been refiled using a corrected event at Docket 69 )(ervsl, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01359-WJM-KLM
LARRY ELEVTHERIOS JOHNSON,
Plaintiff,
v.
MYELIN PRODUCTIONS,
AXUM21st GROUP GLOBAL,
RICHARD VAZ,
SUMMER BROOKE,
ELIZABETH ARTEMIS,
MELANIE DAVIES,
KAMILA DAVIES,
FRANCES VAZ,
SABRINA VAZ,
KIMBERLEE PRATT,
NICOLE STANIC,
ROMANEE STANIC,
KRISTA COX,
KAITLYN NOLAN, and
CHELSEA HUMPHREYS,
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.
63] issued on December 10, 2012. The Court ordered Plaintiff to show cause why it
“should not recommend that the claims against Defendants Myelin Productions, Axum21st
Group Global, Richard Vaz, Summer Brooke, Frances Vaz, Sabrina Vaz, Krista Cox, and
Chelsea Humphreys be dismissed pursuant to Fed. R. Civ. P. 4(m) & 41(b).” Order to

1

Show Cause [#63] at 2. Plaintiff was directed to either (1) file proof of service on these
Defendants or (2) respond in writing to the Order to Show Cause. Id. Plaintiff’s deadline
for compliance with the Order to Show Cause [#17] was January 2, 2013. To date, Plaintiff
has neither filed a response nor contacted the Court in any manner. It appears that Plaintiff
has failed to keep the Court informed of his address, as several orders from the Court have
been returned as undeliverable. See [## 60, 61, 64 and 67].
Plaintiff filed this civil action on May 24, 2012 [#1]. An “amended” Complaint was
filed on June 5, 2012 [##7, 8]. On June 29, 2012, the Court entered an Order directing
Plaintiff to file an amended complaint [#16]. On July 30, 2012, Plaintiff filed his Amended
Complaint [#17]. Plaintiff was granted leave to proceed in forma pauperis including
assistance with service of process by the United States Marshal Service. See Order [#11]
and Cert. Of Service [#21]. However, the deadline for service of Plaintiff’s Amended
Complaint [#17] has passed and Plaintiff has not submitted evidence of service on these
Defendants. See Fed. R. Civ. P. 4(m).
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 Defendants has been
pending since May 24, 2012. Plaintiff failed to effect service of Defendants Myelin
Productions, Axum21st Group Global, Richard Vaz, Summer Brooke, Frances Vaz, Sabrina
Vaz, Krista Cox, and Chelsea Humphreys within one-hundred twenty days of the filing of
this case and failed to provide any reason 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 failure to serve or to provide cause for the service delay would be dismissal of
2

the case against the unserved Defendants. Order to Show Cause [#63]; 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 [#63] is made
ABSOLUTE.
I respectfully RECOMMEND that the claims against Defendants Myelin Productions,
Axum21st Group Global, Richard Vaz, Summer Brooke, Frances Vaz, Sabrina Vaz, Krista
Cox, and Chelsea Humphreys 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
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

3

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: April 3, 2013

4