Byble v. Diamond Cut Lawn & Landscape, LLC. et al

Filing 25

ORDER granting 22 Objection to Report and Recommendation, which is construed as a Motion for Reconsideration. The Clerk is directed to terminate the pending Report and Recommendation, and this matter shall proceed in the typical course. Signed by Magistrate Judge Kimberly A. Jolson on 12/14/2017. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
EDWARD BYBLE,
Plaintiff,
v.

Civil Action 2:17-cv-578
Judge Algenon L. Marbley
Magistrate Judge Jolson

DIAMOND CUT LAWN
& LANDSCAPE, LLC, et al.,
Defendants.
ORDER
On October 11, 2017, this Court issued an Order noting that there is no record that
service has been made upon Defendant and directing Plaintiff to show good cause within
fourteen days why this action should not be dismissed and why an extension of time to effect
service should be allowed. (Doc 6 (citing Fed. R. Civ. P. 4(m)). Plaintiff filed a response on
October 25, 2017, moving for an extension until November 24, 2017, to effect service. (Doc. 9).
The Court, in its discretion, allowed Plaintiff an extension of time to effect service until
November 13, 2017. (Doc. 11). Thus, the Motion was granted in part. (Id.).
On November 14, 2017, Plaintiff filed a second Motion, this time requesting an extension
until December 14, 2017, to effect service. (Doc. 11). Plaintiff also requested that the Court
appoint its counsel as a process server under Rule 4(c)(3) of the Federal Rules of Civil
Procedure. (Id.).
In ruling on Plaintiff’s second Motion, this Court noted that Plaintiff demonstrated
minimal effort in attempting to effect service in this case despite having some 140 days to do so.
(See, e.g., Doc. 9 at 1) (stating that counsel was unaware until the Court’s Order on October 11,
2017, that service had not been effected). Consequently, the Court saw no reason to specially

appoint counsel for service or to extend the time for service by thirty days. However, the Court
in its discretion allowed Plaintiff until November 24, 2017, to effect service. Thus, the Court
granted the Motion in part. (Doc. 13). The Court noted that there would be no further extension
of this deadline.
After the November 24, 2017 deadline passed and Plaintiff had still not effected service,
this Court issued a Report and Recommendation on November 27, 2017, recommending that this
action be dismissed. (Doc. 15). On December 11, 2017, Plaintiff filed an objection to the Report
and Recommendation. (Doc. 22). Although Plaintiff argues that the Court should have extended
the time for service, the thrust of his filing is to inform that Court that he “has recently obtained
service on each Defendant via a process server....” (Id. at 1) (emphasis in original). The
docket provides notice of service. (See Docs. 20 and Doc. 21). Based on the foregoing,
Plaintiff’s objection is construed as a Motion for Reconsideration. In light of the changed
circumstances, Plaintiff’s Motion is GRANTED. Thus, the Clerk is directed to terminate the
pending Report and Recommendation, and this matter shall proceed in the typical course as
governed by the Federal Rules of Civil Procedure.
IT IS SO ORDERED.

Date: December 14, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE