Koutsoukos v. Adecco USA, Inc. et al
OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 10 ; Plaintiff's motion to set aside order of dismissal 7 is GRANTED; the Order of Dismissal 6 is set aside; the Clerk shall accept the affidavit regarding service 8 as fi led; Defendants are considered served as of the date of this Opinion and Order; Plaintiff is strongly warned that additional failure to comply with the Court's orders and rules may be grounds for dismissal of her case with prejudice; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Case No. 1:15-cv-816
HON. JANET T. NEFF
ADECCO USA, INC. et al.,
OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Set Aside Order of Dismissal and Leave
to File Affidavit of Proof of Service (Dkt 7). The matter was referred to the Magistrate Judge, who
issued a Report and Recommendation (R & R), recommending that:
(1) the Order of Dismissal (Dkt 6) be set aside, that the affidavit regarding service (Dkt 8)
be accepted as filed, and that Defendants be considered served as of the date of acceptance
of the Report and Recommendation; and
(2) Plaintiff be strongly warned that additional failure to comply with the Court’s orders and
rules may be grounds for dismissal of her case with prejudice.
The matter is presently before the Court on Defendant Michigan Education Association’s
(MEA) Objection to the Report and Recommendation (Dkt 11). In accordance with 28 U.S.C.
§ 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court has performed de novo consideration of those
portions of the Report and Recommendation to which objection has been made, and finds the
Objection without merit.
The MEA argues that the Magistrate Judge erred in recommending that the Order of
Dismissal be set aside because Plaintiff failed to demonstrate mistake, inadvertence, surprise, or
excusable neglect under FED. R. CIV. P. 60(b)(1). However, the Magistrate Judge properly
considered the basis for this Court’s dismissal without prejudice—Plaintiff’s failure to show that she
timely served Defendants, and her basis for setting aside the Dismissal Order. The Magistrate Judge
found that it was clear that Defendants were served, a conclusion which the MEA does not dispute
(Dkt 11 at PageID.41). The Magistrate Judge properly determined that the dismissal should be set
aside under the circumstances, with an admonishment to Plaintiff that her case may be dismissed
if she subsequently fails to comply with an order of the Court. The MEA’s Objection is denied.
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court. Therefore:
IT IS HEREBY ORDERED that the Objection (Dkt 11) is DENIED and the Report and
Recommendation (Dkt 10) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the Plaintiff’s Motion to Set Aside Order of Dismissal
(Dkt 7) is GRANTED; the Order of Dismissal (Dkt 6) is set aside; the Clerk shall accept the
affidavit regarding service (Dkt 8) as filed; and Defendants are considered served as of the date of
this Opinion and Order.
IT IS FURTHER ORDERED that Plaintiff is strongly warned that additional failure to
comply with the Court’s orders and rules may be grounds for dismissal of her case with prejudice.
Dated: March 7, 2016
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
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