Opinion
Civil Action No. 20-cv-01679-CMA-STV
09-25-2020
ASPHALT COATINGS COMPANY, INC., Plaintiff, v. SWAINE ASPHALT CORP., GOODFELLOW CORP., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This civil action is before the Court upon Plaintiff Asphalt Coatings Company's failure to serve Defendant Goodfellow Corporation and failure to respond to this Court's Order to Show Cause dated August 4, 2020. [#20] For the following reasons, the Court respectfully RECOMMENDS that the Order to Show Cause be made ABSOLUTE and that Defendant Goodfellow Corporation be DISMISSED without prejudice.
On June 9, 2020, Defendant Swaine Asphalt Corporation ("Swaine") filed a Notice of Removal of this action and the case was assigned to District Court Judge Christine Arguello, who referred it to this Court. [## 1, 3, 7] On June 16, 2020 Defendant Swaine filed a Motion to Dismiss for Lack of Jurisdiction. [#12] In light of the pending Motion to Dismiss, this Court entered an Order on August 4, 2020, vacating the upcoming scheduling conference. [#20] In that Order the Court also noted that "Plaintiff has not yet filed an affidavit of service with regard to Defendant Goodfellow Corporation as required by Fed. R. Civ. P. 4(l). On or before 9/10/2020, Plaintiff shall file an affidavit of service or show good cause why the deadline to effect service should be extended."
Pursuant to Federal Rule of Civil Procedure 4(l), "unless service is waived, proof of service must be made to the court." Moreover, pursuant to Federal Rule of Civil Procedure 4(m):
If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
More than 90 days have elapsed since the Complaint was filed and Plaintiff has failed to serve Defendant Goodfellow Corporation or provide good cause why the service deadline should be extended. Accordingly, this Court respectfully RECOMMENDS that the Order to Show Cause [#20] be made ABSOLUTE and Defendant Goodfellow Corporation be DISMISSED without prejudice. DATED: September 25, 2020
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge