Byrd v. JP Morgan Chase

Filing 19

ORDER finding as moot 9 Motion ; finding as moot 11 Motion ; adopting Report and Recommendations re 12 Report and Recommendations.; finding as moot 15 Motion for Default Judgment; finding as moot 18 Motion. Signed by Judge James L. Graham on 12/13/2018. (ds)(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

HOUSTON BYRD, JR.,
Case No. 2:18-cv-506
Plaintiff,
v.

Judge Graham

JP MORGAN CHASE,

Magistrate Judge Vascura

Defendant.
ORDER

This matter is before the Court for consideration of Plaintiff’s objections (ECF Nos. 14 and
16) to the Report and Recommendation issued by Magistrate Judge Vascura on August 30, 2018.
(ECF No. 12).

Magistrate Judge Vascura recommended that this action be DISMISSED

WITHOUT PREJUDICE pursuant to Rule 4(m) for failure to timely effect service.
For the reasons set forth below, the Court OVERRULES Plaintiff’s objections (ECF Nos.
14 and 16) and ADOPTS the Report and Recommendation issued by Magistrate Judge Vascura
on August 30, 2018. (ECF No. 12).
I.

Standard of Review
Plaintiff timely filed his objections on September 4 and September 5, 2018. If a party

objects within the allotted time 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)(C); 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)(C). As required by 28

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U.S.C. § 636(b)(1)(C), the Court will make a de novo review of those portions of the Report and
Recommendation to which Plaintiff specifically objects.
II.

Plaintiffs’ Objections
Plaintiff, proceeding pro se, objected to the Report and Recommendation arguing that by

mailing the summons and complaint to the Defendant via certified mail and confirming their
delivery, this constituted evidence of valid service of process pursuant to a source he cites. Thus,
according to Plaintiff, he has effected service on the Defendant.
III.

Discussion
Plaintiff’s objections are noted, but as noted by Magistrate Judge Vascura, such service by

the Plaintiff does not comport with either Federal Rule of Civil Procedure 4 or the Southern District
of Ohio rules, and it is these rules that bind this Court. As outlined by Magistrate Judge Vascura,
“the summons Plaintiff attempted to serve on Defendant is neither signed by the Clerk nor bears
the Court’s seal as required by Rule 4(a)(1).” (ECF No. 12 at 1–2). Furthermore, “although Ohio
law contemplates service of process through certified or express mail, such mailing must be
completed through the Clerk.” (Id. at 2 citing Ohio Civ. R. 4.1; S.D. Ohio Civ. R. 4.2). Therefore,
by not taking the steps set forth by either Federal Rule of Civil Procedure 4 or the Southern District
of Ohio rules, Plaintiff has not completed effective service, and it is appropriate that this action be
DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 4(m) for failure to timely effect
service.
IV.

Conclusion
Upon de novo review, the Court OVERRULES Plaintiff’s objections (ECF Nos. 14 and

16) and ADOPTS the Report and Recommendation (ECF No. 12). Therefore, this case is
DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 4(m) for failure to timely

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effect service. Accordingly, Plaintiff’s Motion for Objection, Request for Findings to Court’s
Order dated July 26, 2018, and Recusal (ECF No. 9), Motion for Objection, Request for Findings
to Court’s Order dated July 5, 2018, August 24, 2018, Show Cause Order and Recusal (ECF No.
11), Motion for Entry of Default into the Court Record and Default Judgment by the Clerk (ECF
No. 15), and Motion for Findings (ECF No. 18) are hereby DENIED as moot.
IT IS SO ORDERED.

/s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: December 13, 2018

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