Malmstrom v. State of Utah Department of Children and Families et al

Filing 114

MEMORANDUM DECISION AND ORDER ADOPTING 105 REPORT AND RECOMMENDATIONS to grant 35 Motion to Dismiss for Lack of Jurisdiction: Parker Malmstrom's claims against William Nebeker are dismissed without prejudice. Signed by Judge David Nuffer on 2/7/18 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
PARKER MALMSTROM and CRYSTAL
MALMSTROM,

MEMORANDUM DECISION AND
ORDER ADOPTING [105] REPORT
AND RECOMMENDATION

Plaintiffs,
v.

Case No. 1:17-cv-80-DN-EJF

STATE OF UTAH DEPARTMENT OF
CHILDREN AND FAMILIES, et al.,

District Judge David Nuffer
Magistrate Judge Evelyn J. Furse

Defendants.
The Report and Recommendation 1 issued by United States Magistrate Judge Evelyn J.
Furse on January 16, 2018 recommends 2 that Plaintiff Parker Malmstrom’s (“Plaintiff”) claims 3
against Defendant William Nebeker (“Defendant”) be dismissed without prejudice for lack of
personal and subject matter jurisdiction. On Tuesday, January 30, 2018, Plaintiffs Parker
Malmstrom and Crystal Malmstrom timely filed a nearly unintelligible document entitled
“Objection to Magistrate’s Decision and Order Or Motion to Set Aside Magistrate’s [sic].” 4 It
attached a law review article.

1

Report and Recommendation: William Nebeker’s Motion to Dismiss (ECF No. 35), docket no. 105, filed January
16, 2017.
2

Id. at 8.

3

Pro se Plaintiff Parker Malmstrom filed his Complaint on May 16, 2017. See Complaint, docket no. 1, filed May
17, 2017. He then filed an Amended Complaint on May 16, 2017. See Amended Complaint, docket no. 3, filed May
23, 2017. The Amended Complaint joined his mother, Crystal Malmstrom, as a Plaintiff. See Id. At Oral Argument,
Crystal Malmstrom clarified that she is only bringing claims against Defendant Jacob Smith. See Minute Order,
Proceedings held before Magistrate Judge Evelyn J. Furse: Motion Hearing, docket no. 88, filed September 12,
2017. Because of this clarification, the Report and Recommendation only address Parker Malmstrom’s claims
against William Nebeker.
4

Docket no. 107, filed January 30, 2018.

De novo review has been completed of those portions of the report, proposed findings
and recommendations to which objection was made, including the record that was before the
Magistrate Judge and the reasoning set forth in the Report and Recommendation. 5
Although styled as an objection, Plaintiffs’ filing is not sufficient. It is entirely
unresponsive to the issues of personal and subject matter jurisdiction raised in the Report and
Recommendations. Defendant argued in his motion to dismiss that the Court does not have
personal jurisdiction over him because of Plaintiffs’ insufficient service of process. 6 “In the
absence of service of process (or waiver of service by the defendant), a court ordinarily may not
exercise power over a party the complaint names as defendant.” 7 When a defendant challenges
service of process, a plaintiff has the burden to show that service was proper. 8 Plaintiff did not
allege in his memorandum opposing Defendant’s motion 9 or the objection to the Report and
Recommendation 10 that Defendant was properly served under Fed. R. Civ. P. 4. Plaintiff
therefore has failed to carry his burden to show that service on Defendant was proper.
Additionally, “Courts . . . have an independent obligation to determine whether subjectmatter jurisdiction exists, even in the absence of a challenge from any party.” 11 The Report and
Recommendation fulfilled this obligation and Plaintiff failed to respond in any meaningful way
to the determination that subject matter jurisdiction is lacking. The analysis and conclusion of the

5

28 U.S.C. § 636(b).

6

Rule 12(b) Motion at 2, docket no. 35, filed June 15, 2017.

7

Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999).

8

See Fed. Deposit Ins. Corp v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992).

9

Plaintiffs’ Response to Defendant William Nebeker Dkt Entry 35, docket no. 80, filed September 1, 2017.

10

Objection to Magistrate’s Decision and Order Or Motion to Set Aside Magistrate’s [sic], Docket no. 107, filed
January 30, 2018.
11

Id.

2

Magistrate Judge are correct. Therefore, the analysis and conclusion of the Magistrate Judge are
accepted and the Report and Recommendation 12 is adopted.
ORDER
IT IS HEREBY ORDERED that the Report and Recommendation 13 is ADOPTED and
the Defendant William Nebeker’s Motion to Dismiss 14 is GRANTED. Plaintiff Parker
Malmstrom’s claims against Defendant William Nebeker are dismissed without prejudice for
lack of personal and subject matter jurisdiction.
Signed February 7, 2018.
BY THE COURT

________________________________________
David Nuffer
United States District Judge

12

Report and Recommendation: William Nebeker’s Motion to Dismiss (ECF No. 35), docket no. 105, filed January
16, 2017.
13

Report and Recommendation: William Nebeker’s Motion to Dismiss (ECF No. 35), docket no. 105, filed January
16, 2017.
14

Rule 12(b) Motion, docket no. 35, filed June 15, 2017.

3