Mitchell v. Liberty Tax Services et al

Filing 36

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 24 Report and Recommendations and dismissing this case without prejudice pursuant to Federal Rule of Civil Procedure 4(m). Signed by Honorable Cameron McGowan Currie on 11/2/2011. (Attachments: # 1 USM 285 forms)(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Kenneth Ray Mitchell,

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Plaintiff,
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v.
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Liberty Tax Services; Marilyn Kirkland,
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Defendants.
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___________________________________ )

C/A NO. 3:11-609-CMC-PJG

OPINION and ORDER

This matter is before the court on Plaintiff’s pro se complaint filed in this court relating to
certain alleged actions of Defendants.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), DSC, this matter
was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and a
Report and Recommendation (“Report”). On September 21, 2011, the Magistrate Judge issued a
Report recommending that this matter be dismissed without prejudice under Federal Rule of Civil
Procedure 4(m). The Magistrate Judge advised Plaintiff of the procedures and requirements for
filing objections to the Report and the serious consequences if he failed to do so. Plaintiff filed
objections to the Report on September 30, 2011. In response to the Order filed October 4, 2011,
Plaintiff has provided additional United States Marshal forms (USM-285) for potential service of
Defendants.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court.
See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo

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determination of any portion of the Report of the Magistrate Judge to which a specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by
the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b).
After conducting a de novo review as to objections made, and considering the record, the
applicable law, the Report and Recommendation of the Magistrate Judge, and Plaintiff’s objections,
the court agrees with the Report. Accordingly, the court adopts the Report in its entirety by
reference in this Order.
Plaintiff contends that he provided addresses for Defendants and that “there is no excuse for
non[-]service of the defendants.” Obj. at 1 (ECF No. 29). As to Defendant Kirkland, it appears that
she no longer works at Liberty Tax Service. See Return at 1 (ECF No. 19). Neither USM-285 form1
recently provided by Plaintiff is addressed to Defendant Marilyn Kirkland. Therefore, Defendant
Marilyn Kirkland is dismissed from this matter without prejudice pursuant to Federal Rule of Civil
Procedure 4(m).
The USM-285 forms supplied by Plaintiff are addressed to “John Hewitt ‘CEO’ of Liberty
Tax Services,” and “J. Kash, Liberty Tax Services Manager Office.” However, “John Hewitt” and
“J. Kash” are not defendants in this action.2 As noted by the Magistrate Judge in the Order filed
April 12, 2011, “[t]he United States Marshal cannot serve an improperly identified defendant, and

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The Clerk is directed to photocopy the first page of both of these USM-285 forms and file
them as of the filing date of this Order.
2

Plaintiff’s earlier attempt at service on Liberty Tax Service was directed to “John Hewtt
[sic], Owner of Liberty Tax.” Return at 1 (ECF No. 18, filed Aug. 5, 2011). However, the return
indicates that “John Hewitt is the CEO of Liberty Tax Service and the [Liberty Tax Service] @ 7120
Two Notch Rd is independently owned.” Id.
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unserved defendants may be dismissed as parties to this case.” Order at 2 (ECF No. 9).
For these reasons, therefore, this matter is dismissed without prejudice pursuant to Federal
Rule of Civil Procedure 4(m).
IT IS SO ORDERED.

s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE

Columbia, South Carolina
November 2, 2011

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