Opinion
Case No. 2:14-cv-562
01-16-2015
Aaron A. Cole, Plaintiff, v. Michelle Miller, et al., Defendants.
JUDGE ALGENON L. MARBLEY
REPORT AND RECOMMENDATION AND ORDER
This prisoner civil rights case was filed by Plaintiff, Aaron A. Cole, in the United States District Court for the Northern District of Ohio, and subsequently transferred to this Court as a result of Plaintiff's motion for a change of venue. The Court has, in a separate order, granted Plaintiff's motion for leave to proceed in forma pauperis and has assessed the required partial filing fee. That order also directs the Marshal to serve the complaint on the defendants.
Shortly after he filed the complaint, Plaintiff filed a "Motion to Compel and Request for production of documents, Electronically Stored Information, and Tangible Things" (Doc. 3). When he received no response, he filed a "Motion for an Order Compelling Disclosure or Discovery" (Doc. 4). Later, on June 4, 2014, he filed a Motion for Partial Summary Judgment (Doc. 7), supported by an affidavit and exhibits (Doc. 8). Finally, he filed a motion for extension of time under Rule 4(m) on December 19, 2014 (Doc. 13).
With respect to the discovery-related motions (Docs. 3 and 4), the first of these is really a Rule 34 request for documents and not a motion. The second, premised on the Defendant's failure to respond to the Rule 34 request, is not well-taken. Any motion to compel discovery prior to the time that a defendant is served with process (that is, the summons and complaint) is premature. Cipriani v. Buffardi, 2008 WL 656742, *1 (N.D.N.Y. March 6, 2008). Since no defendant has yet been served, that motion will be denied. For the same reason, it will be recommended that the motion for partial summary judgment be denied without prejudice.
As to Plaintiff's motion for an extension, the Court's file does not reflect that Plaintiff submitted any copies of the complaint to be served on the Defendants. He will be directed to do so promptly. He did complete summonses, but they have the case number for the Northern District of Ohio case. He must also submit corrected summonses for this case, to be served with the complaint, along with completed Marshal's service forms (Form USM-285).
For these reasons, the motion to produce and the motion to compel (Docs. 3 and 4) are denied. It is recommended that the motion for partial summary judgment (Doc. 7) be denied without prejudice. The motion for extension of time (Doc. 13) is granted. Plaintiff shall submit service copies of the complaint, completed summonses, and Form USM-285s for each defendant within thirty days. If he does not do so, the case may be dismissed without prejudice under Rule 4(m).
Procedure on Objections to Report and Recommendation
If any party objects to this Report and Recommendation, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
Procedure on Objections to Order
Any party may, within fourteen days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due fourteen days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.
/s/Terence P. Kemp
United States Magistrate Judge