Pisani v. Ritz-Carlton Hotel Company, The et al
ORDER Affirming and Adopting 48 Recommendation of United States Magistrate Judge. Mr. Harrington's Motion to Dismiss (Doc. # 18 ) Plaintiffs Second Claim for Relief is GRANTED, By Judge Christine M. Arguello on 9/8/2020.(angar, )
Case 1:20-cv-00232-CMA-GPG Document 50 Filed 09/08/20 USDC Colorado Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 20-cv-00232-CMA-GPG
THE RITZ-CARLTON HOTEL COMPANY, a limited liability company, and
ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the Recommendation (Doc. # 48) by
Magistrate Judge Gordon P. Gallagher, wherein he recommends that this Court grant
Defendant Patrick Harrington’s Motion to Dismiss (Doc. # 18) based on insufficient
service of process. Plaintiff filed an Objection (Doc. # 49) on September 6, 2020. For
the following reasons, the Court affirms the Recommendation.
This case arises from an incident that allegedly took place on the premises of
The Ritz-Carlton in Bachelor Gulch, Colorado, on December 2, 2018. Specifically,
Plaintiff asserts that Mr. Harrington assaulted him, and Plaintiff was injured as a result.
Plaintiff’s Amended Complaint raises two claims for relief: (1) premises liability against
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Defendant Ritz-Carlton Hotel Company LLC; and (2) battery against Mr. Harrington.
(Doc. # 6 at 2–5.)
Plaintiff initiated this case in Colorado state court on November 30, 2019. On
January 10, 2020, Plaintiff filed an Affidavit of Process Server, which indicates that Mr.
Harrington was served with various documents on January 1, 2020. (Doc. # 18-3.) It is
undisputed that those documents did not include a summons. In the instant Motion, Mr.
Harrington argues that the absence of a summons rendered service legally inadequate.
See Fed. R. Civ. P. 4(c)(1) (A summons must be served with a copy of the complaint.
(emphasis added)); see also Colo. R. Civ. P. 4(c) (“. . . the complaint shall be served
with the summons . . . .” (emphasis added)).
Mr. Harrington raised the issue of defective service for the first time in a motion to
dismiss that he filed in state court on January 24, 2020. (Doc. # 18-4.) Despite having
ample notice of the defect, Plaintiff concedes that he “has not attempted to cure
service.” (Doc. # 49 at 2.) Thus, Mr. Harrington still has not been properly served.
STANDARD OF REVIEW
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
novo any part of the magistrate judge’s [recommended] disposition that has been
properly objected to.” An objection is properly made if it is both timely and specific.
United States v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d
1057, 1059 (10th Cir. 1996). In conducting its review, “[t]he district judge may accept,
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reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
In the absence of a timely objection, however, “the district court may review a
magistrate [judge’s] report under any standard it deems appropriate.” Summers v. Utah,
927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)
(stating that “[i]t does not appear that Congress intended to require district court review
of a magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings.”)).
Judge Gallagher determined that “service of process was legally defective . . .”
as to Mr. Harrington. (Doc. # 48 at 7.) Plaintiff does not object to that determination, see
(Doc. # 49), and the Court adopts Judge Gallagher’s findings and conclusions because
they are not clearly erroneous. Summers, 927 F.2d at 1167 (citing Thomas, 474 U.S. at
150). Rather, Plaintiff argues that he should be permitted to cure the defective service.
(Id.) The Court disagrees.
Federal Rule of Civil Procedure 12(b)(5) allows for the dismissal of an action
without prejudice based on insufficient service of process. Where, as here, “a defendant
is not served within 90 days after the complaint is filed, the court . . . must dismiss the
action without prejudice against that defendant or order that service be made within a
specified time,” unless the plaintiff shows good cause for the delay. Fed. R. Civ. P. 4(m)
(emphasis added). “A court applying these rules engages in a two-part inquiry.” Estate
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of Goodwin v. Connell, 376 F. Supp. 3d 1133, 1144 (D. Colo. 2019) (citing Moore v.
Teamsters Local 41, 2015 WL 859074, at *2 (D. Kan. Feb. 27, 2015)).
First, the court determines whether the plaintiff has shown good cause for his
failure to timely serve the defendant. Id. If good cause is shown, then an extension of
the time for service of process is mandatory. See Fed. R. Civ. P. 4(m); see also
Thunder Mountain Custom Cycles, Inc. v. Thiessen, No. 06-cv-02527-EWN-BNB, 2008
WL 618898, at *6 (D. Colo. Mar. 5, 2008). If good cause is not shown, then the court
proceeds to the second step of the analysis and determines whether a permissive
extension is warranted. See Moore, 2015 WL 859074, at *2.
In Plaintiff’s cursory Objection, he offers no explanation for his failure to timely
serve Mr. Harrington with adequate process. Rather, as Judge Gallagher accurately
observed, “[n]othing in the record indicates that Plaintiff has made any effort to arrange
for proper service of process on [Mr.] Harrington.” (Doc. # 48 at 7.) Thus, Plaintiff has
not shown good cause for his failure, and there is no basis for the Court to award
Plaintiff’s lack of diligence with a permissive extension of time. As a consequence,
dismissal of Plaintiff’s claim against Mr. Harrington is warranted.
Based on the foregoing, the Court ORDERS as follows:
The Recommendation of Magistrate Judge Gallagher (Doc. # 48) is AFFIRMED
AND ADOPTED as an order of this Court;
Mr. Harrington’s Motion to Dismiss (Doc. # 18) Plaintiff’s Second Claim for Relief
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Plaintiff’s Second Claim for Relief is DISMISSED WITHOUT PREJUDICE;
The Clerk of the Court is DIRECTED to amend the caption of this case to reflect
that Mr. Harrington is no longer a Defendant;
Plaintiff’s First Claim for Relief against Defendant Ritz-Carlton Hotel Company
LLC remains pending.
DATED: September 8, 2020
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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