Opinion
CIVIL ACTION NO. 14-107-NJB-SS
11-14-2014
WALLACE JUAN v. THE ST. BERNARD PARISH FIRE DEPARTMENT
REPORT AND RECOMMENDATION
On January 16, 2014, the plaintiff, Wallace Juan, filed a complaint alleging employment discrimination and a claim under the Americans with Disabilities Act against the St. Bernard Parish Fire Department ("Fire Department"). Mr. Juan is not represented by counsel. Rec. doc. 1. He was granted leave to proceed in forma pauperis. Rec. doc. 3.
On April 10, 2014, Mr. Juan was notified that if the Fire Department was not served within 120 days after the complaint is filed, the court must dismiss the action without prejudice. Fed. R. Civ. P. 4(m). Rec. doc. 5. On May 13, 2014, Mr. Juan filed motions to extend the time for serving the Fire Department and for appointment of counsel. Rec. docs. 6 and 7. The motion for appointment of counsel was denied. The motion to extend the time for service was granted. Mr. Juan was given until July 21, 2014 to serve the Fire Department. Rec. doc. 8.
On July 31, 2014, it was recommended that Mr. Juan's complaint be dismissed without prejudice for failure to serve the Fire Department. Rec. doc. 9. On August 1, 2014, the Clerk entered into the record evidence of service of the summons and complaint and filed it as of July 31, 2014. Rec. doc. 10. It indicated that service was made on July 17, 2014. Id. The Fire Department filed an answer on August 27, 2014. Rec. doc. 14.
Mr. Juan objected to the recommendation. Rec. doc. 11. On November 12, 2014, the District Judge sustained the objection and rejected the report and recommendation. The District Judge referred Mr. Juan's complaint to the assigned Magistrate Judge "to prepare a Report and Recommendation for the Court consistent with this opinion." Rec. doc. 15 at 2.
Mr. Juan served the summons and complaint on the Fire Department within the time specified in the May 21, 2014 order. Accordingly,
RECOMMENDATION
IT IS RECOMMENDED that the Court find that the plaintiff, Wallace Juan, served the defendant, St. Bernard Parish Fire Department, within the time permitted for service of the complaint as provided in Fed. R. Civ. P. 4(m), as extended for an appropriate period.
OBJECTIONS
A party's failure to file written objections to the proposed findings, conclusions and recommendations in a magistrate judge's report and recommendation within fourteen (14) calendar days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
New Orleans, Louisiana, this 14th day of November, 2014.
/s/_________
SALLY SHUSHAN
U.S. Magistrate Judge