Opinion
No. 3:14-2157
01-26-2016
JAMES L. WOOD, Plaintiff v. WAYNE CHANEY, et al., Defendants
Judge Trauger/Brown
Jury Demand
TO: THE HONORABLE ALETA A. TRAUGER
REPORT AND RECOMMENDATION
For the reasons stated below, the Magistrate Judge recommends that the claims against the Defendant Belch be dismissed without prejudice for failure to obtain service of process.
Given the one-year statute of limitations it may be that even though the dismissal is without prejudice, any claims against this officer will be barred by the applicable statute of limitations in the absence of appropriate tolling or other provisions of law. --------
The Plaintiff filed his complaint against the Defendant Balch on November 3, 2014. Despite several attempts by the United States Marshals Service to serve this Defendant, the last summonses were returned as unexecuted in June 2015 (Docket Entries 84 and 85). The Plaintiff was cautioned (Docket Entry 94) that if he could not provide a better address for service on this Defendant by August 7, 2015, that the complaint was subject to dismissal.
The Plaintiff has provided no additional information concerning this Defendant and the Defendant remains unserved.
LEGAL DISCUSSION
Federal Rule 4(m) provides that the Defendant must be served within 120 days of the filing of the lawsuit and the Court, on its own motion after notice to the Plaintiff, must dismiss the action without prejudice, or order that service be made within a specific time. The Magistrate Judge's order (Docket Entry 94) gave the Plaintiff until August 7, 2015, to provide a better address for this Defendant. More than 120 days have passed since the August 7thdeadline. Accordingly, under Rule 4(m) the claims against this Defendant are subject to dismissal without prejudice.
RECOMMENDATION
For the reasons stated above, the Magistrate Judge recommends that all claims against the Defendant Balch be dismissed without prejudice for failure to obtain service of process.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has 14 days from receipt of this Report and Recommendation in which to file any written objections to this Recommendation with the District Court. Any party opposing said objections shall have 14 days from receipt of any objections filed in this Report in which to file any responses to said objections. Failure to file specific objections within 14 days of receipt of this Report and Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S. Ct. 466, 88 L.Ed.2d 435 (1985), Reh'g denied, 474 U.S. 1111 (1986).
ENTER this 26th day of January, 2016.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge