Nevarez v. Fanning

Filing 13

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez ADOPTING 11 REPORT AND RECOMMENDATIONS and DISMISSING WITHOUT PREJUDICE 1 Complaint. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that this action be DISMISSED without prejudice for failure to comply with the service provision of Rule 4(m). See Espinoza, 52 F.3d at 841. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BENJAMIN ACOSTA NEVAREZ,
Plaintiff,
v.

No. 16-cv-1323 MV/SMV

ROBERT M. SPEER,
Acting Secretary of the Army,1
Defendant.
MEMORANDUM OPINION AND ORDER
OF DISMISSAL WITHOUT PREJUDICE
THIS MATTER is before the Court on the Magistrate Judge’s Proposed Findings and
Recommended Disposition [Doc. 11], issued on June 9, 2017. The Honorable Stephan M.
Vidmar, United States Magistrate Judge, recommended that this action be dismissed without
prejudice because Plaintiff has failed to serve Defendant and further has failed to show cause
why the action should not be dismissed. Id. The Court agrees with Judge Vidmar that Plaintiff
has failed to serve Defendant, as required by Fed. R. Civ. P. 4. This action will be dismissed
without prejudice.
Plaintiff filed his Complaint on December 5, 2016, claiming that Defendant, his
employer, unlawfully retaliated against him when he refused to cheat his subordinates out of
overtime pay. [Doc. 1] at 2. Plaintiff further alleged that his employer discriminated against him
based on his Hispanic ethnicity, created a hostile work environment for him, and constructively
discharged him. Id. at 3–4. Plaintiff had 90 days from filing the Complaint, or until March 6,
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Robert M. Speer is now the Acting Secretary of the Army. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Robert M. Speer should be substituted for Secretary Eric K. Fanning as the defendant in this suit.

2017, to serve the Defendant with process. Fed. R. Civ. P. 4(m) (2015). That date passed, and
nothing on the record indicated that Plaintiff had served Defendant. Thus, Judge Vidmar ordered
Plaintiff to show cause why his claims should not be dismissed without prejudice for failure to
timely serve Defendant. [Doc. 7] (citing Fed. R. Civ. P. 4(m); Espinoza v. United States, 52 F.3d
838, 841 (10th Cir. 1995)).
In response to the Order to Show Cause, Plaintiff explained that he did not understand
how he had failed to comply with Rule 4 and asked the Court to appoint him an attorney.
[Doc. 8]. Judge Vidmar denied the request for appointment of counsel. [Doc. 9]. However,
Judge Vidmar did explicitly direct Plaintiff to “arrange for the summons and complaint to be
served on Defendant . . . and [to] file the appropriate paper on the record showing that Defendant
has been served.” [Doc. 9] at 2. Further, Judge Vidmar cited Plaintiff to Fed. R. Civ. P. 4 and to
the relevant portion of the Court’s Guide for Pro Se Litigants. Id. He then gave Plaintiff until
June 9, 2017, to serve Defendant or otherwise show cause why this action should not be
dismissed without prejudice. Id.
Plaintiff timely responded on June 7, 2017.

[Doc. 10].

Plaintiff provided three

attachments, which he described as:
Item-1 is a copy of the invoice and the certified receipts which was
mailed respectively to all three parties. Item-2 is a copy of the
notice of appeal petition sent to Eric K[.] Fanning, Secretary of the
Army[,] and Item-3 is a copy of a letter acknowledging receipt of
the certified mail to U.S. Equal Employment Opportunity
Commission in Washington[,] D.C.
The listed items demonstrate the fact that the mail has been
delivered respectively to all three parties in accordance to local
rules of civil procedures.

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[Doc. 10] at 1–2. The attachment labeled “Item-1” was a photocopy of three certified mail
receipts. The receipts each reflected that something was mailed on November 12, 2016. Two of
the receipts reflected that the recipient was at White Sands Missile Range, and the third recipient
was in Washington, D.C. Id. at 3.
Judge Vidmar found that nothing in Plaintiff’s response suggested that he had served
Defendant with the summons and complaint. [Doc. 11] at 2–3. Judge Vidmar explained that,
although the Item-1 documents showed that Plaintiff mailed something to someone, they failed
to show that he served the summons and complaint in this case on Defendant. Id. This was so
because the complaint in this case was filed on December 5, 2016—more than three weeks after
the mailings were sent. Judge Vidmar found that it was simply not possible that mail sent on
November 12, 2016, could have included a summons for a lawsuit filed three weeks later. Even
if Plaintiff had mailed the Complaint on November 12, 2016, and simply waited until
December 5, 2016, to actually file it with the Court, Judge Vidmar found that Plaintiff could not
have mailed the summons on November 12, 2016. Additionally, Judge Vidmar found that
Item-2 and Item-3 did nothing to suggest that Plaintiff had complied with the service provision
of Rule 4. Nor had Plaintiff offered any explanation as to why he had failed to serve Defendant
or why this action should not be dismissed without prejudice. Id. Accordingly, Judge Vidmar
recommended that his action be dismissed without prejudice for lack of service. Id.
Plaintiff timely objected on June 12, 2017. [Doc. 12]. He argues that he “did file and
mail the complaint to the three agencies[.]” Id. at 2. To the extent that he is asserting that he has
served Defendant with the summons and complaint from this case, the Court is not persuaded.

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None of the materials filed in this case suggest that Plaintiff has served Defendant with the
summons and complaint in this case.
Plaintiff also seems to argue that he believed the Clerk’s Office would serve the
summons and complaint for him in exchange for the filing fee that he paid. [Doc. 12] at 2.
Plaintiff further argues that someone in the Clerk’s Office told him that his documents were
sufficient to show that “the agencies received my complaints.” Id. He explains that he cannot
find a lawyer who will take his case. Id. He feels that he should not “have to go to legal terms,
forms, and procedures that only an attorney would know.” Id. Finally, he urges that his claims
are meritorious and that the Court should provide him “legal guidance.” Id.
The Court is sympathetic to Plaintiff’s frustration. The Court, however, is not permitted
to act as Plaintiff’s advocate. Importantly, even after Judge Vidmar explicitly instructed Plaintiff
on how to serve Defendant in accordance with Rule 4, Plaintiff failed to do so. See [Docs. 9,
10]. Then, after Judge Vidmar recommended dismissing the action for lack of service, Plaintiff
still has shown no effort to serve Defendant with the summons and complaint as required by
Rule 4 and has thoroughly explained in the Court’s Guide for Pro Se Litigants. See [Docs. 11,
12].
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that this action be
DISMISSED without prejudice for failure to comply with the service provision of Rule 4(m).
See Espinoza, 52 F.3d at 841.
IT IS SO ORDERED.
______________________________
MARTHA VÁZQUEZ
United States District Judge
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