Diaz v. Johnson et al

Filing 22

Judge Indira Talwani: ORDER ADOPTING the Report and Recommendations 19 and DISMISSING the Complaint 1 . (Kinsella, Devan)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KEVIN DIAZ,

*
*
Plaintiff,
*
*
v.
*
*
ASHLEY JOHNSON, United States Navy, *
MICHAEL MYERS, United States Office *
of Naval Research, JIM GALAMBOS,
*
Defense Strategic Technology Office, and *
ANDREI IANCU, United States Patent
*
and Trade Mark Office,
*
*
Defendants.
*

Civil Action No. 18-cv-11257

ORDER
May 8, 2019
TALWANI, D.J.
On June 15, 2018, Plaintiff Kevin Diaz filed a Complaint [#1] pro se. On September 17,
2018, the Magistrate Judge to whom this case was referred granted Plaintiff’s Motion for
Extension of Time [#9], giving Plaintiff until October 19, 2018, to effectuate service of process
on the Defendants. Order [#15]. The Magistrate Judge further ordered Plaintiff, should he be
unable to serve process by other means provided by Fed. Rule of Civ. P. 4, to file with the court
a detailed explanation of the steps he undertook to effectuate service of process to allow the court
to consider whether the circumstances warrant issuing an order to the marshal or deputy marshal
to service process pursuant to Rule 4(c)(3). Id. Plaintiff did not respond to the Order [#15] and to
date has not filed proof of service upon the Defendants.
On April 29, 2019, the Magistrate Judge issued a Report and Recommendation [#19],
recommending that Plaintiff’s Complaint be dismissed both because Plaintiff had failed to
effectuate service in a timely manner, and because the court does not have subject matter
1

jurisdiction under the Tucker Act, 28 U.S.C. § 1491, or the Administrative Procedures Act, 5
U.S.C. § 702 et seq. R & R [#19]. Plaintiff filed his Response to Recommendation for Dismissal
on May 6, 2019. Pl’s Resp. [#21].
In his Response, Plaintiff acknowledges that he has not served Defendants, and fails to
provide any explanation for his failure to respond to the Magistrate Judge’s Order of September
17, 2018. Nor does his Response address the Magistrate Judge’s recommendation that Plaintiff’s
Complaint be dismissed for lack of subject matter jurisdiction.
The court ADOPTS the Magistrate Judge’s Report and Recommendation [#19] for the
reasons set forth therein. Plaintiff’s Complaint [#1] is DISMISSED without prejudice.
IT IS SO ORDERED.
Date: May 8, 2019

/s/ Indira Talwani
United States District Judge

2