Tower et al v. Amazon.com Inc et al

Filing 88

REPORT AND RECOMMENDATION: It is RECOMMENDED that the this action be DISMISSED WITH PREJUDICE against Defendants Kenkebooks and Anybooks pursuant to Rule 4(m) for failure to timely effect service of process. Objections to R&R due by 3/8/2018. Signed by Magistrate Judge Chelsey M. Vascura on 2/22/2018. (kpt)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TABATHA AUMETRA TOWER, et al.,
Plaintiffs,
Civil Action 2:15-cv-2405
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura

v.

AMAZON.COM, INC., et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiffs filed their initial Complaint (ECF No. 1) on June 12, 2015, against Defendants,
Amazon.com Inc., Rosedog Books, Kenkebooks, and Anybooks, and filed an Amended
Complaint (ECF No. 30) against those Defendants on December 12, 2015. After filing their
Amended Complaint, Plaintiffs had the Clerk issue summonses to Defendants Kenkebooks and
Anybooks. (ECF No. 31.) Defendant Rosedog Books filed a Motion to Dismiss on December
16, 2015. (ECF No. 33.) Defendant Amazon.com Inc. filed an Answer on December 23, 2015.
(ECF No. 34.) Thereafter, on December 28, 2015, Plaintiffs filed a green card certified mail
receipt for Kenkebooks. (ECF No.36.) There is no indication on the docket that the Amended
Complaint was served on Defendant Anybooks.
On May 12, 2016, Plaintiffs moved for an entry of default (ECF No. 40) but did not specify
against whom, and filed another application for entry of default and a motion for default judgment
on July 19, 2016, against Amazon.com Inc., Kenkebooks, and Anybooks. (ECF Nos. 50 & 51.)
Those motions were denied in an Opinion and Order on August 18, 2016. (ECF No. 55.)

On November 9, 2016, the Court ordered Plaintiff to show cause as to why this action
should not be dismissed against Defendants Kenkebooks and Anybooks for failure to timely effect
service pursuant to Federal Rule of Civil Procedure 4(m). (ECF No. 58.) Specifically,
Magistrate Judge Kemp instructed Plaintiff that:
As the Court noted in the August 18, 2016 order, under Fed.R.Civ.P. 4(c)(2), a
party may not make service herself, and under Rule 4(e), service may not be made
by certified mail (unless that mail originates with the Clerk’s office, see Local Civ.
Rule 4.2, which incorporates Ohio’s method of service). The Court therefore
directs Plaintiff to show good cause within fourteen days of the date of this Order
why this action should not be dismissed as to these two defendants or, alternatively,
why an extension of time to effect service should be allowed. The good cause
showing must be supported with a sworn affidavit or declaration under penalty of
perjury.
(Nov. 9, 2016, Order, ECF No. 58.)
To date, Plaintiff has failed to respond to the Court’s Show Cause Order. Moreover, this
case is now at the summary judgment stage so any attempts to show cause or serve those
Defendants would be prejudicial to Defendants. Typically, when defendants are dismissed from a
case due to improper service, they are dismissed without prejudice. See Friedman v. Estate of
Presser, 929 F.2d 1151, 1158 (6th Cir. 1991); Fed. R. Civ. P. 4(m). The facts and circumstances
of this case, however, suggest that dismissal with prejudice may be appropriate. It is therefore
RECOMMENDED that the this action be DISMISSED WITH PREJUDICE against
Defendants Kenkebooks and Anybooks pursuant to Rule 4(m) for failure to timely effect service
of process.
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
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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/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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