Mbangu v. Army and Air Force Exchange

Filing 26

ORDER ADOPTING 22 REPORT AND RECOMMENDATIONS. Signed by Judge Gregory L Frost on 4/4/14. (kn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ERIC MBANGU,
Plaintiff,
Case No. 2:13-cv-575
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers

v.

ARMY & AIR FORCE EXCHANGE,
Defendant.

OPINION & ORDER
This matter is before the Court for consideration of the Magistrate Judge’s February 24,
2014 Report and Recommendation (“R&R”). (ECF No. 22.) In that filing, the Magistrate Judge
addressed Plaintiff’s failure to perfect service pursuant to Federal Rule of Civil Procedure
4(i)(2). Because Defendant is an agency of the United States, Rule 4(i)(2) requires that Plaintiff
send a copy of the summons and complaint by registered or certified mail to three entities: (1)
the Army & Air Force Exchange, (2) the United States Attorney’s Office for the Southern
District of Ohio, and (3) the Attorney General of the United States at Washington, D.C. FED. R.
CIV. P. 4(i)(2). Plaintiff, however, served only the Army & Air Force Exchange. (ECF No. 5.)
Service therefore remains incomplete.
On December 6, 2013, the Court specifically instructed Plaintiff that he must serve the
United States Attorney’s Office for the Southern District of Ohio and the Attorney General of the
United States at Washington, D.C. (ECF No. 14.) The Court granted Plaintiff two extensions of
time in which to perfect service and even directed the Clerk to provide Plaintiff with the
appropriate forms. (ECF Nos. 20 & 21.) But, despite the fact that 252 days had elapsed since

Plaintiff filed his complaint, Plaintiff failed to comply with the Court’s instructions. The
Magistrate Judge therefore recommended that Plaintiff’s complaint be dismissed without
prejudice pursuant to Rule 4(m).
Plaintiff objected to the R&R. (ECF No. 24). When a party timely objects to a report
and recommendation, the Court “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1); see also FED. R. CIV. P. 72(b). Upon review, the Court “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1).
In his objection, Plaintiff argues that he is entitled to a continuance “so the Defendant
gets properly served.” (ECF No. 24.) Plaintiff asserts that he “sent two summons [sic] to the
United States District attorney in Ohio and attorney General at Washington, DC through a
Register mail to the clerk of court on February 7, 2014 and was delivered on February 10, 2014.”
(Id.) Plaintiff attached to his objections a tracking number purporting to show that a package
was delivered to an unidentified address in Columbus, Ohio. (Id.)
Plaintiff’s objection to the R&R is not well taken. Pursuant to Rule 4(l), proof of service
must be made to the Court by the server’s affidavit. FED. R. CIV. P. 4(l).1 Affidavits, in general,
must be sworn or made under oath before an authorized officer. Sfakianos v. Shelby Cnty. Gov’t,
481 F. App’x 244, 245 (6th Cir. 2012) (citing Mason v. Clark, 920 F.2d 493, 495 (8th Cir.
1990)). A party may submit an unsworn declaration in lieu of a sworn affidavit; however, the
declaration must state that the signing party certifies “under penalty of perjury under the laws of
the United States of America that the foregoing is true and correct.” 28 U.S.C. § 1746(1).
1

Rule 4(l) does not require an affidavit in certain circumstances, none of which are at issue in this case.

2

Plaintiff’s unsworn assertions regarding service in his objection are insufficient to prove
service pursuant to Rule 4(l). Moreover, Plaintiff asserts that he mailed two summonses to the
appropriate government entities, but includes only a single tracking number indicating that a
package was delivered in Columbus, Ohio. (ECF No. 24.) It therefore appears from his
objection that Plaintiff did not serve the Attorney General of the United States at Washington,
D.C., despite being informed by the Court on three occasions that he must do so.
The Court acknowledges that failure to prove service does not affect the validity of
service, and that it may allow proof of service to be amended. FED. R. CIV. P. (l)(3). Here,
however, Plaintiff has had numerous chances to perfect service. The Court finds no good cause
that would justify another extension of time.
To date, almost 300 days have elapsed since Plaintiff filed his complaint. Plaintiff
received specific instructions regarding how to properly serve Defendant, yet he failed to comply
with those instructions. Accordingly, pursuant to Rule 4(m), the Court finds that dismissal of
Plaintiff’s complaint is proper. The Magistrate Judge correctly recommended that Plaintiff’s
complaint be dismissed without prejudice.
Having conducted a de novo review and after consideration of the R&R and Plaintiff’s
objection thereto, the Court OVERRULES Plaintiff’s objection (ECF No. 24), ADOPTS the
R&R (ECF No. 22), and DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint. The
Clerk is DIRECTED to enter judgment accordingly and terminate this case on the docket
records of the United States District Court for the Southern District of Ohio, Eastern Division.
IT IS SO ORDERED.
/s/ Gregory L. Frost_____________
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE
3