Hillman v. State of Ohio et al

Filing 12

REPORT AND RECOMMENDATIONS re 8 MOTION to Dismiss Complaint filed by Ron O'Brien, Franklin County Prosecutor's Office. It is recommended that the Court strike 8 motion to dismiss for lack of service. Objections to R&R due by 2/3/2012. Signed by Magistrate Judge Terence P Kemp on 1/17/2012. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robert L. Hillman,

:

Plaintiff,

:
:

v.
State of Ohio, et al.,

Case No.

2:11-cv-607

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

Defendants.

:

REPORT AND RECOMMENDATION
In an order filed on December 15, 2011, the Court noted that
the pending motion to dismiss had not been properly served.

In

that order, defendant O’Brien was directed to serve a copy of his
motion to dismiss upon Plaintiff Robert L. Hillman by regular
mail, and to file an amended certificate of service indicating
the date of mailing.
has been filed.

To date, no amended certificate of service

Thus, the record shows that defendants filed a

motion to dismiss on September 26, 2011, and have never served a
copy of that motion on the plaintiff.
Fed.R.Civ.P. 5(a) makes service of a document like a motion
to dismiss mandatory.

When service has not been made, the usual

remedy is to strike the filing.

See, e.g,, Petersen v. Chicago,

Great Western Ry. Co., 3 F.R.D. 346 (D. Neb. 1943).

In this

case, the Court gave defendants a prior opportunity to correct
the error by re-serving the motion and filing an amended
certificate of service.

For whatever reason, they have

apparently chosen not to do so.

Therefore, it is recommended

that the Court strike the motion to dismiss (#8) for lack of
service.
PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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