Brewer v. Guaranteed Auto, Inc.
Filing
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OPINION AND ORDER that Magistrate Judge Russell G. Vineyard's Final Report and Recommendation 11 is ADOPTED, and Plaintiff's motion for default judgment 8 is DENIED. IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT PREJUDICE. Signed by Judge William S. Duffey, Jr on 9/2/2015. (anc)
On May 12, 2015, Magistrate Judge Vineyard issued an Order (the “Order”)
[9] that Plaintiff must provide adequate proof of service on GAI to assure that the
Court had jurisdiction in this matter. Plaintiff had served GAI by leaving the
summons and complaint with Kim Baker (“Baker”), Georgia Secretary of State
Process Coordinator, but Plaintiff had “not included with her motion for default
judgment proof of compliance with the requirements for substituted services upon
the Secretary of State pursuant to O.C.G.A. § 9-11-4(e)(1).” (Order at 3-4). The
Court reserved ruling on Plaintiff’s motion for default judgment until she provided
adequate proof of service. (Id.).
On May 15, 2015, Plaintiff filed an “Affidavit of Process Server” [10] in
which Chris Stanton, the process server, stated he attempted to serve GAI, but
another business was located at the address where service was attempted. Plaintiff
has not otherwise responded to the Order.
On June 1, 2015, the Magistrate Judge issued his R&R recommending that
Plaintiff’s motion for the entry of a default judgment be denied, on the ground that
Plaintiff failed to show that she properly served GAI with a copy of the summons
and complaint in this case. (R&R at 6). Magistrate Judge Vineyard found that
Plaintiff did not show that she fulfilled the requirement of O.C.G.A.
§ 9-11-4(e)(1)(A) to “forward[] by registered mail or statutory overnight delivery
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such process, service, or demand to the last registered office or registered agent
listed on the records of the Secretary of State,” or that she certified to the Secretary
of State that she had done so. (R&R at 5). Judge Vineyard also concluded that,
because Plaintiff has failed to show that Defendant has been properly served, the
action must be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure because the 120 day deadline for service had expired. (Id. at 6).
Plaintiff also had not shown good cause for her failure of service, or sought an
extension of time in which to serve GAI. (Id. at 7).
II.
STANDARD OF REVIEW
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). When, as here, no
party has filed any objections to the report and recommendation, the Court must
conduct a plain error review of the record. U.S. v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983).
III.
DISCUSSION
The Court does not find any plain error in Judge Vineyard’s finding that
Plaintiff has failed to show she properly served Defendant GAI. The Court also
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finds no plain error in the Magistrate Judge’s determination that, because 120 days
have passed since the filing of the complaint naming GAI as a defendant,
Plaintiff’s complaint must be dismissed without prejudice. See Fed. R. Civ. P.
4(m); LR 41.2B, NDGa.; Milburn v. Aegis Wholesale Corp., Civil Action No.
1:12-CV-1886-RWS, 2013 WL 1747915, at *1 n.2 (N.D. Ga. Apr. 22, 2013).
IV.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Russell G. Vineyard’s
Final Report and Recommendation [11] is ADOPTED, and Plaintiff’s motion for
default judgment [8] is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT
PREJUDICE.
SO ORDERED this 2nd day of September, 2015.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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