Smith v. Munford Police Department et al

Filing 15

ORDER Adopting the Report and Recommendation. Signed by Judge Thomas L. Parker on 6/12/19. (jgb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

LAWRENCE SMITH,
Plaintiff,
v.
MUNFORD POLICE DEPARTMENT,
FNU WILLIS, FNU GREEN, FNU
FLAKE,

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No. 2:18-cv-02435-TLP-cgc

Defendants.

ORDER ADOPTING THE REPORT AND RECOMMENDATION

The Magistrate Judge recommends that this Court grant Defendants’ Motion to
Dismiss (ECF No. 11) Plaintiff Lawrence Smith’s Complaint for insufficient service of
process. See Fed. R. Civ. P. 12(b)(5); (ECF No. 14 at PageID 61.)
The Court may dismiss a complaint if the service of process was insufficient. See Fed.
R. Civ. P. 12(b)(5). Service of process was insufficient here in four ways. (ECF No. 14.)
Plaintiff did not serve a copy of the Complaint to any Defendant. See Fed. R. Civ. P.
4(c)(1); (ECF No. 14 at PageID 61.) He also served them by certified mail as opposed to
registered or certified return receipt mail. 1 See Tenn. R. Civ. P. 4.04 (10); Fed. R. Civ. P.
4(e)(1); (ECF No. 14 at PageID 61.) And Plaintiff did not properly serve Munford’s chief
executive officer or the city attorney. Fed. R. Civ. P. 4(j)(2)(A); Fed. R. Civ. P. 4(j)(2)(B);
Tenn. R. Civ. P. 404 (8); (ECF No. 14 at PageID 61.) Finally, Plaintiff did not serve any
Defendant within ninety days. Fed. R. Civ. P. 4(m); (ECF No. 14 at PageID 61.) The
Magistrate Judge then recommended this Court dismiss the Complaint.

A party has fourteen days to object to a Report and Recommendation. See
Fed. R. Civ. P. 72(b)(2). Plaintiff did not object. See Fed. R. Civ. P. 5(b)(2), 6(d), 72(b)(2).
This Court thus reviews the Report and Recommendation only for “clear error.”
Fed. R. Civ. P. 72(b) advisory committee notes. The Court finds no error and ADOPTS the
Report and Recommendation (ECF No. 14) in its entirety. 2
The Court therefore GRANTS Defendants’ Motion to Dismiss and DISMISSESS
Plaintiff’s Complaint WITHOUT PREJUDICE.
SO ORDERED, this 12th day of June, 2019.
s/ Thomas L. Parker
THOMAS L. PARKER
UNITED STATES DISTRICT JUDGE

1

Certified mail provides the sender with a mailing receipt and tracking number to verify
delivery, while return receipt is an additional service that provides the sender with either a
hard or electronic copy of delivery confirmation that includes proof of the recipient’s
signature. What is Certified Mail?, U.S. POSTAL SERVICE, https://faq.usps.com/s/article/Whatis-Certified-Mail (last visited June 7, 2019).
2
Plaintiff did not respond to the Motion to Dismiss within twenty-eight days of service, so the
Magistrate Judge ordered him to show cause, within fourteen days, why the Court should not
recommend this Court grant the Motion. (ECF No. 12.) Plaintiff did not timely respond.
(ECF No. 14 at PageID 59.)

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