Anozia v. Lynch, et al

Filing 33

ORDER adopting 30 Memorandum and Recommendation - Upon careful review of the M&R and the record in this case, the court ADOPTS the M&R as its own and DENIES the motions for default and to dismiss, and GRANTS plaintiff' s motion for extension of time. Accordingly, the court EXTENDS the time for service to 21 days from the date of this order. The court notes that plaintiff filed a document on December 28, 2016, which has been docketed as a petition for writ of mandam us (DE 31). The court CONSTRUES the filing as an attempt to file proof of service of the original complaint under Federal Rule of Civil Procedure 4(l), and the clerk is DIRECTED to re-characterize the filing on the docket as a notice regarding proof of service. The court notes that the notice fails to prove service as required by Federal Rule of Civil Procedure 4(l) and in accordance with the instructions in the M&R and the instant order. In the event plaintiff completes service as directed in the M&R and in this order, within 21 days, plaintiff is DIRECTED to file a corrected proof of service of the complaint and summonses in accordance with Rule 4(l). Signed by District Judge Louise Wood Flanagan on 1/6/2017. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:16-CV-151-FL

ANTHONY C. ANOZIA,
Plaintiff,
v.
LORETTA E. LYNCH, Attorney General,
JEH JOHNSON, Department of Homeland
Security, LEON RODRIGUEZ, Director,
U.S. Citizenship and Immigration Services,
EDWARD A. NEWMAN, District Director,
USCIS Vermont Service Center, SAMUEL
MUNOZ, Acting Field Office Director,
USCIS Raleigh-Durham Field Office, and
JAMES B. COMEY, Director, Federal
Bureau of Investigation,
Defendants.

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ORDER

This matter comes before the court on plaintiff’s motions for entry of default (DE 12, 13, 14,
15, 16, 17, 18), defendant’s motion to dismiss (DE 20), and plaintiff’s motion for extension of time
to effect service (DE 24). United States Magistrate Judge Robert B. Jones entered a memorandum
and recommendation (“M&R”), pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil
Procedure 72(b), wherein he recommends that the court deny the motions for default and to dismiss,
and grant plaintiff’s motion for extension of time. No objections to the M&R have been filed, and
the time within which to make any objection has expired. Upon careful review of the M&R and the
record in this case, the court ADOPTS the M&R as its own and DENIES the motions for default and
to dismiss, and GRANTS plaintiff’s motion for extension of time. Accordingly, the court

EXTENDS the time for service to 21 days from the date of this order.
The court notes that plaintiff filed a document on December 28, 2016, which has been
docketed as a petition for writ of mandamus (DE 31). The document filed, however, is a duplicate
of the complaint in this case, with the addition of a “certificate of service” dated December 28, 2016.
Accordingly, the court CONSTRUES the filing as an attempt to file proof of service of the original
complaint under Federal Rule of Civil Procedure 4(l), and the clerk is DIRECTED to re-characterize
the filing on the docket as a notice regarding proof of service. With respect to the notice regarding
proof of service, as so construed, the court notes that the notice fails to prove service as required by
Federal Rule of Civil Procedure 4(l) and in accordance with the instructions in the M&R and the
instant order. In order to prove service, plaintiff must file an affidavit of proof of service, stating
that service of the original complaint and summonses was made in accordance with the requirements
of Rule 4(i), and as directed in the M&R and in this order. In the event plaintiff completes service
as directed in the M&R and in this order, within 21 days, plaintiff is DIRECTED to file a corrected
proof of service of the complaint and summonses in accordance with Rule 4(l).
SO ORDERED, this the 6th day of January, 2017.

LOUISE W. FLANAGAN
United States District Judge

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