Cowgill v. Burke

Filing 14

REPORT AND RECOMMENDATIONS by Chief Magistrate Judge Karen B. Molzen. Objections to R&R due by 8/3/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (mlt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOHN HULBERT COWGILL,
Beneficiary John Hulbert Cowgill,
on behalf of the Private Foreign Trust,
Plaintiff,
v.

CIV 17-0242 JB/KBM

PATRICK J. BURKE, President and Chief
Executive Officer for HSBC BANK USA,
N.A. as Trustee for Wells Fargo Asset
Securities Corporation, Mortgage PassThrough Certificates, Series 2007-7,
Defendant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court sua sponte, pursuant to the Order to Show
Cause issued June 30, 2017 (Doc. 13), and the Honorable James O. Browning’s Order
of Reference (Doc. 12), filed June 23, 2017.1 In the Order to Show Cause, this Court
noted that the case is subject to dismissal without prejudice because Plaintiff has not
properly served Defendant. See Doc. 13 at 3 (citing Fed. R. Civ. P. 4(m) and 28 U.S.C.
§ 1448, which together require that after notice to the plaintiff, the Court “must” dismiss
the action without prejudice if a defendant is not served within 90 days of the filing of the
notice of removal). Accordingly, the Court required Plaintiff to properly serve Defendant,
or to show cause as to why service had not been made, on or before July 14, 2017.
Doc. 13 at 4. The Court explicitly cautioned Plaintiff that failure to do so would result in a
recommendation to Judge Browning that this action be dismissed without prejudice. Id.
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In the Order of Reference, Judge Browning directed me “to conduct hearings, if warranted,
including evidentiary hearings, and to perform any legal analysis required to recommend to the
Court an ultimate disposition of the case.” Doc. 12.

The July 14 deadline has come and passed, yet Plaintiff has neither served
Defendant, nor offered an explanation as to why proper service has not been made.
Accordingly, Plaintiff has manifested a lack of interest in properly litigating this matter in
accordance with the Federal Rules of Civil Procedure.
Wherefore,
IT IS HEREBY RECOMMENDED that Plaintiff’s action be dismissed without
prejudice.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the District Court within the
fourteen-day period if that party wants to have appellate review of the proposed
findings and recommended disposition. If no objections are filed, no appellate
review will be allowed.

______________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE

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