Butt v. Sessions et al

Filing 23

REPORT AND RECOMMENDATION re 3 Amended Complaint filed by Selena Jean Cooper Butt. It is RECOMMENDED that this action be DISMISSED WITHOUT PREJUDICE pursuant to Rule 4(m) for failure to timely effect service. Objections to R&R due by 11/29/2018. Signed by Magistrate Judge Chelsey M. Vascura on 11/15/2018. (daf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SELENA JEAN COOPER BUTT,
Plaintiff,
Case No. 2:18-cv-383
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura

v.
JEFFERSON B. SESSIONS, III,
United States Attorney General, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff was previously ordered to show cause why the Court should not dismiss this
action as against Defendants for failure to timely effect service under Federal Rule of Civil
Procedure 4(m). (ECF No. 14.) In Response to the Show Cause Order, Plaintiff asserted that
the Summons to Defendant Jefferson Sessions, III, was returned executed on June 19, 2018, and
requested a one-month extension of time to obtain service over Defendant Kirstjen Nielson.
(ECF No. 17.) The Court granted Plaintiff’s request for an extension and ordered Plaintiff to
effect service over Defendant Nielson on or before October 20, 2018. (ECF No. 18.)
To date, Plaintiff has not perfected service over either Defendant Sessions or Defendant
Nielson under Federal Rule of Civil Procedure 4(i). Rule 4(i) provides the proper procedure for
effecting service when a United States Officer is sued in his official capacity, providing in
pertinent part as follows:
(1) United States. To serve the United States a party must:
(A)(i) deliver a copy of the summons and of the 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 (ii) send a copy of each by registered
or certified mail to the civil-process clerk at the United States attorney’s office;
(B) send a copy of each by registered or certified mail to the Attorney General
of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the
United States, send a copy of each by registered or certified mail to the agency
or officer.
(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To
serve a United States agency or corporation, or a United States officer or employee
sued only in an official capacity, a party must serve the United States and also send
a copy of the summons and of the complaint by registered or certified mail to the
agency, corporation, officer, or employee.
Fed. R. Civ. P. 4(i). Although Plaintiff served Defendant Sessions, she failed to serve the United
States Attorney for this district with a copy of the Summons and Complaint as required by Rule
4(i)(1)(A). Plaintiff also failed to effect service over Defendant Nielson, as she has not served
Defendant Nielson or the United States Attorney for this district with a copy of the Summons
and the Complaint as required by Rules 4(i)(1)(A), 4(i)(1)(C), and 4(i)(2).
Plaintiff was previously cautioned that failure to perfect service over Defendants would
result in this action being dismissed without prejudice pursuant to Federal Rule of Civil
Procedure 4(m). (ECF No. 14.) It is therefore RECOMMENDED that this action be
DISMISSED WITHOUT PREJUDICE pursuant to Rule 4(m) for failure to timely effect
service.
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
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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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