Wyartt v. The Municipality of Zanesville Ohio et al

Filing 20

REPORT AND RECOMMENDATIONS that this matter be dismissed without prejudice. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 1/29/2014. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Michael L. Wyatt,

:

Plaintiff,

:

v.

:

The Municipality of
Zanesville Ohio, et al.,
Defendants.

Case No. 2:13-cv-117

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
By order dated June 14, 2013, the Court directed plaintiff
Michael L. Wyatt to show good cause why this action should not be
dismissed and why an extension of time to effect service should
be allowed.

Mr. Wyatt filed a response on June 18, 2013

requesting a 90-day extension of time to complete service.

Mr.

Wyatt also requested that the Court “accept the contact letter
already sent to Defendant” as service of process.

On June 25,

2013, this Court issued an order finding that the contact letter
was not service of process and that Mr. Wyatt demonstrated good
cause for an extension.

Finding that Mr. Wyatt failed to

demonstrate a need for the length of time requested, the Court
granted Mr. Wyatt 45 days from the date of the order to complete
service on defendants in a manner permitted by Fed. R. Civ. P.
4(a)-(c) and Local Civil Rules 4.1 and 4.2.
On July 16, 2013, Mr. Wyatt filed certified mail return
receipts for many of the named individual defendants in an
apparent effort to demonstrate that he attempted service.

To the

extent that Mr. Wyatt attempted to serve defendants, he has
apparently done so by certified mail without complying with the
local rules.

In their motion to dismiss, defendants argue that

this matter should be dismissed for, inter alia, failure of
process and service of process.

This Court agrees.

Fed. R. Civ. P. 4 explains how a complaint and summons are
to be served on a defendant, when that must happen, and who is
allowed to make service.

After reviewing the service documents

filed by Mr. Wyatt, the Court concludes that he has not followed
the rule and that no proper service has been made.

Service of a

summons and complaint must be made by a “person who is at least
18 years old and not a party ....”

Fed. R. Civ. P. 4(c)(2).

Mr.

Wyatt is a party and therefore cannot serve the complaint
himself.
Further, federal law does not ordinarily allow for service
by certified mail.

Service of process in a federal court case

may be made by a method allowed by state law, and Ohio law
permits certified mail service, but only by the Clerk of Court.
In order to give litigants the benefit of this method of service,
this Court has adopted a procedure for having the Clerk make
certified mail service.

That procedure is set out in Local Civil

Rule 4.2 and has not been followed here.

Further, Fed. R. Civ.

P. 4(m) provides that a complaint and summons be served on each
named defendant within 120 days of the date the complaint is
filed.

It is well outside of the 120-day period and Mr. Wyatt

has not obtained valid service.

Based on the foregoing, the

Court will recommend dismissal without prejudice pursuant to Fed.
R. Civ. P. 4(m).
For the reasons set forth above, the Court recommends that
this matter be dismissed without prejudice.
Procedure on Objections
If any party objects to this Report and Recommendation, that
party may, within fourteen (14) 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
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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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