Watkins v. Conn et al

Filing 14

REPORT AND RECOMMENDATIONS AND ORDER - The Court RECOMMENDS that any claims against Deborah Lockridge Hunt, Frank Payne, Raymond Pugh and the United States Postal Service be dismissed without prejudice. The Court ORDERS Plaintiff to show good cause w ithin fourteen (14) days why this action should not be dismissed and why an extension of time to effect proper service on Ms. Conn should be allowed. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 3/17/2015. (agm1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Kenneth L. Watkins,

:

Plaintiff,

:

v.

:

Sue Rena Conn, et al.,
Defendants.

Case No. 2:14-cv-1365

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
AND ORDER
I.

REPORT AND RECOMMENDATION

Plaintiff Kenneth L. Watkins filed his complaint in this
case on August 27, 2014, and named Sue Rena Conn, Deborah
Lockridge Hunt, Frank Payne, and Raymond Pugh as defendants.

On

September 9, 2014, Mr. Watkins moved to amend his complaint.

His

motion, in its entirety, reads as follows:
The names of Deborah Lockridge-Hunt, Frank Payne
and Raymond Pugh to be removed as defendants as earlier
stated I wish for them to be witnesses only and change
Title 7, to Title 1331-FMLA.
Mr. Watkins also captioned his motion as Kenneth L. Watkins v.
Sue Conn, and the U.S. Postal Service.
The motion to amend was granted by order dated September 26,
2014.

On January 22, 2015, the Court issued an order noting that

Mr. Watkins had not filed proof of service on the United States
Postal Service.

The order directed Mr. Watkins to show cause as

to why the defendant United States Postal Service should not be
dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m).
On February 2, 2015, Mr. Watkins filed a response to the
show cause order.

His response does not address the issue of

service on the United States Postal Service.

Rather, his

response suggests that he interpreted the show cause order as
requiring him to produce evidence in support of his claims.
Mr. Watkins’ response to the show cause order, read together
with the language of his motion to amend, leads the Court to
conclude that it is not Mr. Watkins’ intention to name the United
States Postal Service as a defendant, despite his having included
such a reference in the caption of his motion.

Rather, based on

Mr. Watkins’ filings, the Court finds that he intends to pursue
his claims against Ms. Conn as the sole defendant.

Consequently,

to the extent that the original complaint or the amendments can
be read as asserting any claims against Deborah Lockridge Hunt,
Frank Payne, Raymond Pugh or the United States Postal Service,
the Court will recommend that these claims be dismissed without
prejudice.
II.

ORDER

This brings the Court to Ms. Conn, the remaining defendant.
The original complaint naming Ms. Conn as a defendant was filed
on August 27, 2014.

According to the Court’s docket (Doc. 7), a

summons was returned executed as to Ms. Conn on September 25,
2014.

The return receipt indicates a delivery date of September

15, 2014 and contains the signature of N. Whittaker.

However,

according to the allegations of the complaint, Ms. Conn is an
employee of the United States Postal Service.

The Federal Rules

of Civil Procedure set forth specific provisions for service on
an employee of the United States.

See Fed.R.Civ.P. 4(i).

For

example, to serve a United States employee sued in an official
capacity, a party must serve the United States and send a copy of
the summons and complaint by registered or certified mail to the
employee.

See Fed.R.Civ.P. 4(i)(2).

To serve a United States

employee sued in an individual capacity, a party must serve the
United States and serve the employee under Rule 4(e).
Fed.R.Civ.P. 4(i)(3).

See

To serve the United States, a party must

deliver a copy of the summons and complaint to the United States

attorney for the district where the action is brought - or to an
assistant United States attorney or clerical employee whom the
United States attorney designates in a writing filed with the
court clerk, or send a copy of the summons and complaint by
registered or certified mail to the civil-process clerk at the
United States attorney’s office and send a copy by registered or
certified mail to the Attorney General of the United States at
Washington, D.C.

See Fed.R.Civ.P. 4(i)(1).

There is no evidence

that Ms. Conn was served in accordance with these provisions.
Federal Rule of Civil Procedure 4(m) provides in relevant
part:
If a defendant is not served within 120
days after the complaint is filed,
the court – on motion or on its own
after notice to the plaintiff must dismiss the action without prejudice
against that defendant or order that service
be made within a specified time. But if the
plaintiff shows good cause for the failure,
the court must extend the time for service
for an appropriate period.
Consequently, the Court will order that Mr. Watkins show
good cause within fourteen days of the date of this order why
this action should not be dismissed as to Ms. Conn and why an
extension of time to effect service should be allowed.

The good

cause showing must be supported with sworn affidavits.

Mr.

Watkins is advised that he is not required in his response to
come forward with evidence relating to the merits of his claims,
but merely needs to explain his efforts to serve a copy of the
summons and complaint on Ms. Conn in accordance with Fed.R.Civ.P.
4.
III.

RECOMMENDED DISPOSITION AND ORDER

For the reasons stated above, the Court recommends that any
claims against Deborah Lockridge Hunt, Frank Payne, Raymond Pugh
and the United States Postal Service be dismissed without
prejudice.

Plaintiff shall show good cause within fourteen days of the
date of this order why this action should not be dismissed and
why an extension of time to effect proper service on Ms. Conn
should be allowed.
PROCEDURE ON OBJECTIONS TO THE REPORT AND RECOMMENDATION
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