WILLIAMS v. Environmental Protection Agency et al

Filing 82

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 72 Report and Recommendations. It is ordered that Defendants who have not been served or who have been improperly served in this civil action are DISMISSED WITHOUT PREJUDICE. Signed by Judge Michael H. Schneider on 3/3/16. (mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
MICHAEL E. WILLIAMS
Plaintiff,

V.
ENVIRONMENTAL PROTETCTION
AGENCY ET AL
Defendant.

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CIVIL ACTION NO. 6:15-CV-862

ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The above entitled and numbered civil action was referred to United States Magistrate
Judge John D. Love pursuant to 28 U.S.C. § 636. The Magistrate Judge issued a Report and
Recommendation concluding that Defendants who have not been served or who have been
improperly served be dismissed without prejudice (Doc. No. 72).
The Report and Recommendation of the Magistrate Judge, which contains his findings,
conclusions, and recommendation for the dismissal of sixteen Defendants, has been presented for
consideration. Plaintiff filed objections to the Report and Recommendation (Doc. No. 75). For
the reasons discussed below, the Court is of the opinion that the findings and conclusions of the
Magistrate Judge are correct. Therefore, the Court hereby adopts the findings and conclusions of
the Magistrate Judge as the findings and conclusions of the Court.
Plaintiff’s objections are almost entirely unrelated to the Magistrate Judge’s Report and
Recommendation. Over the span of thirty-four pages, his only reference to the Report is the
following: “Defendants were informed of case by certified mail. As representatives of
Defendants requested. No service issues exist. See dates of all Defendants answer. Estoppel.”
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From these statements, the Court can glean only one objection. It appears that Plaintiff
believes he served all Defendants properly. As discussed in the Magistrate Judge’s Report,
Rule 4 states that (1) any person who is at least 18 years old and not a party may serve a
summons and complaint and (2) a plaintiff is responsible for having the summons and complaint
served within 120 days after the complaint is filed unless the plaintiff can show good cause for
the failure to serve within 120 days. Here, Plaintiff himself served the EPA and Gina McCarthy,
which directly violates the Federal Rules because a party to the lawsuit may not serve the
summons and complaint.
The Court has not received proof that the following Defendants have been properly
served: Matthew McCarthy, Jack Arias, Sarah Scheldt, Kevin Black, TXI-Cement, General
Counsel Hood, Sedgwick Corp., Cindy Weakly, Koholberg (of Kohlberg, Kravis, Roberts Co.),
Kravis (of Kohlberg, Kravis, Roberts Co.), Roberts (of Kohlberg, Kravis, Roberts Co.), David
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Decker, Kathleen Crunch, and James Hoyle. When the Court inquired about service of these
Defendants at the January 25, 2016 status conference, Plaintiff failed to show the Court good
cause for his failure of service. Instead, Plaintiff told the Court that those Defendants had been
properly served, which is an assertion with no basis in the record.
It is accordingly ORDERED that Defendants who have not been served or who have
been improperly served in this civil action are DISMISSED WITHOUT PREJUDICE.
SIGNED this 3rd day of March, 2016.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
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