Tulk v. Cavender et al

Filing 40

MEMORANDUM OPINION AND ORDER adopting and incorporating the 9 Proposed Findings and Recommendations by Magistrate Judge; denying without prejudice the defendants' 7 Motion to dismiss; this matter is recommitted to the magistrate judge under the original reference to take all such further steps and proceedings herein as shall be appropriate. Signed by Judge John T. Copenhaver, Jr. on 7/27/2016. (cc: plaintiff; counsel of record) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
SHERRY A. TULK,
Plaintiff,
v.

Civil Action No. 2:15-cv-11653

RIC CAVENDER, EAST END MAIN
STREET, CHARLESTON MAIN STREETS,
AFFILIATE ORGANIZATIONS, AMY MCLAUGHLIN,
MARY BETH HOOVER, MARYANNE CRICKARD,
ROB THOMAS, MIKE PUSHKIN, MARY JEAN DAVIS,
MARC WEINTRAUB, DICKINSON GOULD,
JIM EDWARDS, LORI BRANNON, SARAH HALSTEAD,
WEST END MAIN STREET, JOSH DODD, and
MESH DESIGN AND DEVELOPMENT,
Defendants.
MEMORANDUM OPINION AND ORDER

Pending is defendants’ motion to dismiss, filed
January 13, 2016.
This action has been referred to Dwane L. Tinsley,
United States Magistrate Judge, who has submitted his Proposed
Findings and Recommendations (“PF&R”) on the motion to dismiss
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B).
Plaintiff’s complaint in this action, which was filed on July
30, 2015, makes claims related to copyright infringement and
unfair trade practices.

Defendants moved to dismiss on January

13, 2016, because of plaintiff’s failure to serve defendants
with a copy of the complaint within the allotted time.

The

magistrate judge filed his PF&R regarding defendants’ motion to
dismiss on May 20, 2016.
The court has reviewed the PF&R entered by the
magistrate judge on the aforementioned date.

Defendants had

moved to dismiss because plaintiff did not serve them with
process within 120 days.

The magistrate judge noted, however,

that pro se plaintiffs proceeding in forma pauperis – that is,
without prepayment of costs or fees - are entitled to rely on
court officers to complete service of process.

And, in an in

forma pauperis case, the magistrate judge typically orders
service of the defendants only after he has screened the
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).
In the present case, the magistrate judge had not
completed his screening of the complaint at the time of
defendants’ motion, and so service had not been ordered or
completed.

The magistrate judge stated that “where a plaintiff

has demonstrated reasonable efforts to assist in obtaining . . .
service [through officers of the court], he or she should not be
penalized by dismissal for untimely service.”

Consequently, the

magistrate judge recommended that defendants’ motion to dismiss
2

be denied without prejudice, and he noted, also, that he had
completed his screening and would soon order service.

Neither

party has filed an objection to the PF&R.1
Inasmuch as neither party has objected, and following
a de novo review, it is ORDERED that the PF&R be, and it hereby
is, adopted and incorporated herein.

It is further ORDERED that

defendants’ motion be, and it hereby is, denied without
prejudice.
The court also ORDERS that this matter be, and it
hereby is, recommitted to the magistrate judge under the
original reference to take all such further steps and
proceedings herein as shall be appropriate.

1

Plaintiff did file a document labeled an “Objection” on June 3,
2016, but it was an objection to defendants’ motion to dismiss,
not to the PF&R. In that “objection,” plaintiff also requested
“an extension of 30 days from the date of this request . . . for
service of summons upon defendants and disposition, to allow for
determination of proceeding with complicated and additional
complaints and parties,” and “to allow time . . . to seek
counsel for an evident, complicated, extensive, and lengthy
complaint.” Inasmuch as the Clerk issued summons to defendants
on June 3, there is no need for the court to extend the time for
service. Beyond the additional time requested for service,
plaintiff does not state what deadlines she wishes to be
delayed. To the extent that she seeks additional modification
of the scheduling order, that request is best directed to the
magistrate judge, to whom the case will continue to be
committed.
3

the undersigned, unless canceled.
directed to appear.
02/29/2016

Lead counsel

Entry of scheduling order.

03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is directed to send a copy of this written
The Clerk is of record and plaintiff.
opinion and order to counselrequested to transmit this Order and
Notice to all counsel of record and to any unrepresented
parties.
ENTER: January 2016
DATED: July 27, 5, 2016
John T. Copenhaver, Jr.
United States District Judge

4