Prince et al v. National Labor Relations Board et al

Filing 58

ORDER adopting Report and Recommendations re 27 , 29 Report and Recommendations dismissing defendants Yaff, Solomon and Chavarry for failure of service. Signed by Judge Michael R. Barrett on 1/15/19. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION CINCINNATI
EARL KELLY PRINCE, et al.,
Plaintiffs,
Case No.1:16-CV-00419-MRB
vs.
Judge Michael R Barrett
NATIONAL LABOR RELATIONS
BOARD, et al.,
Defendants.
ORDER
The majority of the Defendants have been dismissed from this case. The only
remaining Defendants are Defendant Yaffe, Defendant Solomon, and Defendant
Chavarry.
Early in this case, the magistrate judge entered an order (Doc. 19) requiring
Plaintiffs to show cause, in writing, within twenty (20) days why the complaint should
not be dismissed against Defendants Yaffe, Solomon and Chavarry for failure of service.
When Plaintiffs failed to comply with the show cause order, the magistrate judge issued a
report (Doc. 27) recommending that the claims against Defendants Yaffe, Solomon, and
Chavarry be dismissed for failure of service. Later, the magistrate judge issued a
supplemental report (Doc. 29) providing Plaintiffs notice of their right to object to the
report and recommendation, which notice had inadvertently been omitted from the initial
report and recommendation. Thereafter, Plaintiffs timely filed objections (Doc. 31), and
Defendants timely filed a memorandum in opposition (Doc. 32) to the objections.

In their objections, Plaintiffs essentially concede that service on Defendants Yaffe,
Solomon, and Chavarry was never perfected, but attempt to avoid the consequences of
that failure by asserting that Defendants Yaffe, Solomon, and Chavarry should have
voluntarily provided their addresses and other personal information in disclosures
pursuant to Rule 26(a) of the Federal Rules of Civil Procedure. (Doc. 31, PageID 145).
However, the government persuasively argues that “initial disclosures are not due until
after a defendant is properly served,” and “such initial disclosures are not a vehicle by
which defendants are required to voluntarily provide plaintiffs personal information
necessary to complete service.” (Doc. 32, PageID 156). Accordingly, Plaintiffs’
objections fail.
Furthermore, even if the objections (Doc. 31) offered legally valid reasons for the
delay in service, the Court is not obliged to accept those reasons unless Plaintiffs could
somehow excuse their non-compliance with the show cause order. Plaintiffs’ failure to
offer any explanation for their non-compliance with Magistrate Judge Litkovitz’s Order
serves as an independent basis to overrule their objections.
Therefore, for the foregoing reasons, the Court ADOPTS the remaining
recommendations of the magistrate judge (Doc. 27; Doc. 29). The claims against
Defendants Yaffe, Solomon, and Chavarry are DISMISSED without prejudice for failure
of service. As the remaining Defendants have been dismissed, this case is CLOSED
AND TERMINATED from the active docket of this Court.

Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a) that for the foregoing
reasons an appeal of this Order would not be taken in good faith and therefore denies
Plaintiffs leave to appeal in forma pauperis. Plaintiffs remain free to apply to proceed in
forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800, 803
(6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277
(6th Cir. 1997).
IT IS SO ORDERED.
s/Michael R. Barrett
__________________________
Hon. Michael R. Barrett
United States District Judge