Shabazz v. Schofield et al

Filing 335

REPORT AND RECOMMENDATION: This matter is before the Court upon a "Motion to Dismiss for Insufficient Service of Process," filed by Defendants David Sexton, Todd Wiggins, Dan Walker, Jerry Lester, and Wanda Chaffin. Docket No. 178. Defend ants have filed a supporting Memorandum of Law. Docket No. 179. Plaintiff has filed a Response to the Motion. Docket No. 198. the instant Motion to Dismiss for Insufficient Service of Process (Docket No. 178) should be DENIED AS MOOT, without prej udice to being refiled to reflect current service by the U.S. Marshal. Signed by Magistrate Judge E. Clifton Knowles on 8/21/22014. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

OMOWALE ASHANTI SHABAZZ,
Plaintiff,

vs.

DERRICK SCHOFIELD, et al.,
Defendants.

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CASE NO. 3:13-00091
JUDGE SHARP/KNOWLES
JURY DEMAND

REPORT AND RECOMMENDATION
This matter is before the Court upon a “Motion to Dismiss for Insufficient Service of
Process,” filed by Defendants David Sexton, Todd Wiggins, Dan Walker, Jerry Lester, and
Wanda Chaffin. Docket No. 178. Defendants have filed a supporting Memorandum of Law.
Docket No. 179. Plaintiff has filed a Response to the Motion.1 Docket No. 198.
After the filing of the instant Motion, the Court entered an Order requiring that service be
made by the United States Marshal or Deputy Marshal upon seventeen Defendants, including
David Sexton, Todd Wiggins, Dan Walker, and Jerry Lester. Docket No. 207. The Court noted
that these four Defendants had appeared for the sole purpose of contesting service. The Court
also noted, however, that Defendants David Sexton, Todd Wiggins, Dan Walker, Jerry Lester
and Wanda Chaffin apparently had been successfully served. Id.

1

As the Court has observed elsewhere, Plaintiff filed a single Response to the instant
Motion and to Defendants’ Motion to Set Aside Entry of Default.

In that Order, the Court directed the Clerk to send Plaintiff a service packet for the
unserved Defendants, as well as four of the persons who were contesting service (Sexton,
Wiggins, Walker, and Lester), and ordered the marshal to serve those Summonses upon them.
Docket No. 207, p. 2. The other movant in the instant Motion, Ms. Chaffin, was listed by the
Court as a person who had already been served.2 Id.
Thus, the instant Motion was filed prior to the Court’s ordering the U.S. Marshal to serve
process. The instant Motion, therefore, does not address whether these movants have been
properly served by the U. S. Marshal.
For the foregoing reasons, the instant Motion to Dismiss for Insufficient Service of
Process (Docket No. 178) should be DENIED AS MOOT, without prejudice to being refiled to
reflect current service by the U.S. Marshal.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

2

The Court notes that the Clerk apparently also believed Ms. Chaffin had been served,
as he entered a default against her. Docket No. 142.
2

E. Clifton Knowles
United States Magistrate Judge

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