Opinion
Civil Action 20-cv-02340-RM-STV
01-12-2021
RORY KRIEGER, Plaintiff, v. ICTV BRANDS, INC. and GADSDEN PROPERTIES, INC., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak United States Magistrate Judge
This civil action is before the Court on Plaintiff's responses to the Order to Show Cause. [See #11, 13, 14, 16, 17, 18] For the following reasons, the Court respectfully RECOMMENDS that this case be DISMISSED based upon Plaintiff's failure to timely effect service on Defendants.
Plaintiff, proceeding pro se, initiated this action on August 6, 2020. [#1] On August 10, 2020, District Judge Raymond P. Moore issued an order “strongly encourage[ing] Plaintiff to contact the Federal Pro Se Clinic which provides free assistance to people representing themselves in the U.S. District Court for the District of Colorado.” [#6]
In reviewing Plaintiff's filings in this case, the Court is mindful that “[a] pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992)).
Magistrate Judge Varholak's staff also has encouraged Plaintiff to seek assistance from the Federal Pro Se Clinic on several occasions when Plaintiff called with questions regarding his case.
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.
Pursuant to Rule 4(m), the deadline for Plaintiff to effect service thus was November 4, 2020. Federal Rule of Civil Procedure 4(1) provides that “[u]nless service is waived, proof of service must be made to the court . . . by the server's affidavit.” “Any person who is at least 18 years old and not a party may serve a summons and complaint.” Fed. R. of Civ. P. 4(c)(2). Pursuant to Rule 4(d), a plaintiff may request that a defendant waive service of process by sending the defendant certain documentation and providing the defendant at least 30 days to respond to the request. If the defendant agrees to waive service and the plaintiff files the signed waiver with the court, “proof of service is not required and the[ ] rules apply as if a summons and complaint had been served at the time of filing the waiver.” Fed.R.Civ.P. 4(d)(4).
As of the November 4, 2020 deadline, Plaintiff had filed neither a signed waiver of service nor an affidavit of service. Pursuant to D.C.COLO.LCivR 41.1,
A judicial officer may issue an order to show cause why a case should not be dismissed for failure to prosecute or failure to comply with these rules, the Federal Rules of Civil Procedure, or a court order. If good cause is not shown, a district judge or a magistrate judge exercising consent jurisdiction may enter an order of dismissal with or without prejudice.
Thus, on November 17, 2020, this Court issued an Order to Show Cause requiring Plaintiff to “show cause in writing on or before December 10, 2020, why Plaintiff's Complaint should not be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m) and D.C.COLO.LCivR 41.1.” [#11 at 2 (emphasis omitted)] The Order to Show Cause “specifically advised [Plaintiff] that failure to comply with th[e] Order and timely show cause on or before December 10, 2020 w[ould] result in a Recommendation that Plaintiff's Complaint be dismissed.” [Id. (emphasis in original)] The Order to Show Cause also once again advised Plaintiff that he may qualify for assistance from the Federal Pro Se Clinic. [Id.]
On November 17, 2020, Plaintiff filed a Notice of a Lawsuit and Request to Waive Service of a Summons (“Request for Waiver”) addressed to each Defendant. [#13, 14] The Requests for Waiver were dated November 16, 2020 and provided Defendants with 30 days from that date to return the Requests for Waiver and thereby avoid the expenses associated with formal service of process. [Id.] Specifically, the Requests for Service advise that “[i]f [Defendants] return the signed waiver, [Plaintiff] will file it with the court” and “[t]he action will then proceed as if [Defendants] had been served on the date the waiver is filed, but no summons will be served on [Defendants].” [Id.] The Requests for Waiver further explain, however, that “[i]f [Defendants] do not return the signed waiver within the time indicated, [Plaintiff] will arrange to have the summons and complaint served on [Defendants]” and “will ask the court to require [Defendants] . . . to pay the expenses for making service.” [Id.] The Requests for Waiver filed by Plaintiff do not indicate that Defendants actually have agreed to waive service and are not signed by Defendants. [Id.]
On November 30, 2020 and again on December 31, 2020, Plaintiff filed documentation, including United States Postal Service Certified Mail Receipts, indicating that unspecified documents were sent to and received by Defendants. [#16, 17] Neither filing includes either a waiver of service signed by Defendants or an affidavit of service pursuant to Rule 4(1).
On January 11, 2021, Plaintiff filed a document titled “Notice Withdraw Document” (the “Notice”). [#18] In the Notice, Plaintiff acknowledges that Defendants were not served pursuant to Federal Rule of Civil Procedure 4(c), because “Plaintiff chose the alternative”-i.e., waiver of service pursuant to Rule 4(d). [Id. at 3 (emphasis and capitalization omitted)] The Notice contends that, by sending the Requests for Waiver, Plaintiff “fulfilled all Federal Civil requirements; including Order to Show Cause.” [Id. at 4 (emphasis omitted)] The Notice asserts that “both DEFENDANTS accepted PLAINTIFF's Complaint (initial disclosures)” as “[b]oth signed for their parcel live and in-person, per USPS Certified Mail.” [Id.] The Notice further contends that waive of service pursuant to Rule 4(d) “was the only service option executed by [Plaintiff]” and thus the “Court does not require an affidavit.” [Id. at 5 (emphasis omitted)]
Importantly, however, the Notice does not indicate that Defendants have actually agreed to waive service and no written and signed waiver from Defendants was included with the Notice (or has otherwise been filed with the Court). Plaintiff thus has failed to satisfy the requirements for waiver of service under Rule 4(d), which “requires that the waiver be executed by the defendant, returned to the plaintiff, and filed by the plaintiff with the court.” Bernard v. Husky Truck Stop, 45 F.3d 439, 1995 WL 4087, at *1 (10th Cir. 1995) (unpublished table decision); see also Fed. R. Civ. P. 4(d)(2) (stating that court must impose “expenses later incurred in making service” upon defendant if defendant “fails, without good cause, to sign and return a waiver”). As a result, Plaintiff was required to effect service upon Defendants pursuant to Federal Rule of Civil Procedure 4(c) and was required to file the affidavit of service required by Rule 4(1). See Fed. R. Civ. P 4(d)(4) (stating that “proof of service is not required” when plaintiff “files a waiver”), 4(1) (stating that “[u]nless service is waived, proof of service must be made to the court . . . by the server's affidavit”).
The requirement for Plaintiff to obtain a written and signed waiver of service from Defendants in order for waiver under Rule 4(d) to be effective is expressly referenced in documents Plaintiff filed into the record. As noted above, the Requests for Waiver signed and filed by Plaintiff expressly state that “[i]f [Defendants] do not return the signed waiver within the time indicated, [Plaintiff] will arrange to have the summons and complaint served on [Defendants].” [#13, 14] Similarly, an excerpt of the Court's Civil Lawsuit Guide that Plaintiff included with the Notice, expressly advises that “[i]f the defendant does not agree [to waive service], [the plaintiff] must serve the Summons and Complaint in the regular way.” [#18 at 16 (emphasis omitted)]
Plaintiff's responses to the Order to Show Cause, which at most demonstrate that Plaintiff mailed Defendants the Requests for Waiver and a copy of the Complaint, thus are insufficient to satisfy the requirements for waiver or service under Rule 4. In light of the clear direction provided by Rule 4 and the documentation filed by Plaintiff providing clear guidance on the requirements for service, Plaintiff's responses also fail to demonstrate good cause for granting Plaintiff a further extension of the deadline to effect service.
Accordingly, this Court respectfully RECOMMENDS that this action be DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 4(m) and D.C.COLO.LCivR 41.1. See Bernard, 1995 WL 4087, at *1 (finding that “district court was correct in dismissing the action” where “[d]efendant was never served with a summons, as required by federal law, nor did it execute and return a waiver of service”).
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).