Opinion
Civil Action 21-cv-01524-MEH
02-25-2022
ARTHUR WALKER, Plaintiff, v. MARSHALL CALHOUN, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty United States Magistrate Judge
This matter comes before the Court sua sponte, due to Plaintiff's failure to demonstrate service upon Defendant Marshall Calhoun in accordance with Fed.R.Civ.P. 4(m). This Court ordered Plaintiff to show cause why it should not recommend dismissal of the claims against Defendant Calhoun for Plaintiff's failure to serve him and prosecute this case, but Plaintiff has not responded. ECF 51. Accordingly, the Court respectfully recommends that, for the reasons stated herein, the claims against Defendant Calhoun be dismissed without prejudice.
I. Background
Plaintiff initiated this action on June 4, 2021. ECF 1. The operative Amended Complaint was filed on July 26, 2021. ECF 8. At that time, the Amended Complaint named two Defendants: Brandon Lankford-who has been dismissed from this case as a result of the Court's order on summary judgment, see ECF 52-and John Doe #1. Unusual for these types of cases, Plaintiff is not proceeding in forma pauperis since he paid the filing fee. ECF 4 (order denying Section 1915 motion and directing Plaintiff to pay filing fee); ECF 5 (filing fee paid). On August 3, 2021, Defendant Lankford returned a waiver of service. ECF 16. On October 22, 2021, Plaintiff identified John Doe #1 as Defendant Calhoun. ECF 29.
The Court notes that prior to this, all named parties consented to magistrate judge jurisdiction. ECF 17 (Plaintiff's consent); ECF 20 (Defendant Lankford's consent). Consequently, Senior Judge Jackson issued an order of reference. ECF 21.
The Court held a status conference on November 1, 2021 at which the Court directed Defendant Lankford to inquire about service on Defendant Calhoun. ECF 30. Two days later, Defendant Lankford filed a status report indicating that Defendant Calhoun was no longer a Colorado Department of Corrections (“CDOC”) employee. ECF 31. He did, though, provide (under restriction) Defendant Calhoun's last known address. ECF 32. The Court then acted sua sponte-despite Plaintiff not proceeding in forma pauperis-in ordering service by the United States Marshal. ECF 34. On December 8, 2020, the Clerk filed an unexecuted return of service for Defendant Calhoun under Level 3 Restriction, indicating that Defendant Calhoun no longer lived at that address. ECF 44 (restricted Level 3 document); ECF 43 (public docket entry). Plaintiff then filed a motion asking the Court to track down Defendant Calhoun based on the allegation that he sells cars in California. ECF 47. The Court found this information to be insufficient for the Court to locate Defendant Calhoun and denied the motion. ECF 51.
As part of that denial, this Court issued an order for Plaintiff to show cause why his claims against Defendant Calhoun should not be dismissed pursuant to Fed.R.Civ.P. 4(m) for Plaintiff's failure to serve him. Id. Despite the February 22, 2022 deadline, Plaintiff has filed no response.
II. Legal Standards
A court cannot obtain personal jurisdiction over a party without proper service of process. See Murphy Brothers, Inc. v. Mitchetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (“In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as a defendant.”) (citation omitted); Okla. Radio Associates v. F.D.I.C., 969 F.2d 940, 943 (10th Cir. 1992) (“Rule 4 service of process provides the mechanism by which a court having venue and jurisdiction over the subject matter of an action asserts jurisdiction over the person of the party served.”) (citations omitted); Lampe v. Xouth, Inc., 952 F.2d 697, 700-01 (3d Cir. 1991) (“A court obtains personal jurisdiction over the parties when the complaint and summons are properly served upon the defendant. Effective service of process is therefore a prerequisite to proceeding further in a case.”).
Fed. R. Civ. P. 4 governs service of a summons and complaint in federal court. Pursuant to Rule 4(c), “[t]he plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” Fed.R.Civ.P. 4(c). Rule 4(m) provides, in pertinent part,
[i]f 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.Fed. R. Civ. P. 4(m). Plaintiff is not excepted from this rule. Dona't v. Amazon.com/Kindle, 482 F.Supp.3d 1137, 1144 (D. Colo. 2020) (“[E]ven though Plaintiff is a pro se inmate, proceeding in forma pauperis, he must still comply with the same rules of procedure governing other litigants, including Rule 4.”).
Generally, good cause requires the moving party to establish that the initial deadline cannot be met, despite his diligent efforts. Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000). In Scott, the court set forth the required inquiry a court must make before dismissing a case pursuant to Rule 4(m):
The preliminary inquiry to be made under Rule 4(m) is whether the plaintiff has shown good cause for the failure to timely effect service . . . . If good cause is
shown, the plaintiff is entitled to a mandatory extension of time. If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted. At that point, the district court may in its discretion either dismiss the case without prejudice or extend the time for service.216 F.3d at 912 (quoting Espinoza v. United States, 52 F.3d 838, 840 (10th Cir. 1995)).
III. Discussion
Rule 4(m) provides that “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.” Fed.R.Civ.P. 4(m) (emphasis added). Here, the original deadline pursuant to Rule 4(m) to serve Defendant Calhoun expired in October 2021 (ninety days after the Amended Complaint was filed on July 26, 2021). ECF 8. At a November 1, 2021 conference, the Court requested that counsel for Defendant Lankford see if they could waive service on behalf of Defendant Calhoun. ECF 30. After some investigation, counsel confirmed that Defendant Calhoun was no longer a CDOC employee but provided his last known address. ECF 31; ECF 32. The Court then sua sponte ordered service through the United States Marshal. An unexecuted summons was returned on December 8, 2021. ECF 43; ECF 44. Plaintiff then filed a motion stating that Defendant Calhoun worked in California selling cars. ECF 47. The Court denied that motion and issued its order to show cause. Plaintiff did not timely respond to that order.
“The prosecution of this lawsuit, including service on the defendants, is ultimately Plaintiff's responsibility.” Dona't, 482 F.Supp.3d at 1144 (citing Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007)). It matters not whether Plaintiff is entitled to rely on service by the United States Marshal because, even if he is, “the Marshal is not charged with finding a defendant who has moved without providing an accessible forwarding address.” Fields, 511 F.3d at 1113. Because Plaintiff has made little effort to prosecute his case against Defendant Calhoun, this also is not a scenario in which the pro se litigant is not culpable for complying with the Federal Rules of Civil Procedure. See Olsen v. Mapes, 333 F.3d 1199, 1204- 05 (10th Cir. 2003) (excusing pro se plaintiff from failure to serve because the plaintiff was “not culpable for [his] failure”).
Consequently, the Court notified Plaintiff of Rule 4(m)'s consequence for failure to serve in its February 8, 2022 order to show cause. ECF 51. Nevertheless, Plaintiff has neither responded to that order nor sought any extension of time within which to respond or to serve.
IV. Conclusion
THEREFORE, Plaintiff having failed to serve Defendant Calhoun pursuant to Fed.R.Civ.P. 4(m), to demonstrate any cause for either mandatory or permissive extension of the service deadline, and to respond to this Court's order, the Court respectfully recommends that the claims against Defendant Calhoun be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m) and 41(b) and this case be closed. The Court directs the Clerk of the Court to reassign this case to an Article III judicial officer.d
As the Court noted in footnote one, Senior District Judge Jackson issued an order of reference based on the parties' consent to magistrate judge jurisdiction. ECF 21. Since then, however, Plaintiff identified John Doe #1 as Defendant Calhoun. Given the lack of service on Defendant Calhoun, he has not consented to magistrate judge jurisdiction. There appears to be a circuit split on whether, in this instance, consent would need to be achieved from the unserved party. Compare Williams v. King, 875 F.3d 500, 504 (9th Cir. 2017) (finding “that consent of all parties (including unserved defendants) is a prerequisite to a magistrate judge's jurisdiction to enter dispositive decisions under § 636(c)(1)”), and Coleman v. Labor and Indus. Review Comm'n of Wisc., 860 F.3d 461, 471 (7th Cir. 2017) (noting that the “crucial element” of consent is when “at least one plaintiff and one defendant have consented to the authority of the magistrate judge”), with Burton v. Schamp, - F.4th -, 2022 WL 322883, at *6 n.43 (“No consent from a defendant is necessary where a plaintiff has failed to effect service on the defendant in the time prescribed by Fed.R.Civ.P. 4(m). Thus, consent from a defendant is unnecessary where a plaintiff chooses not to serve the defendant or is unable to serve the defendant.”), and Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995) (“[B]ecause [defendants] had not been served, they were not parties to this action at the time the magistrate [judge] entered judgment. Therefore, lack of written consent from the defendants did not deprive the magistrate judge of jurisdiction in this matter.”). The Tenth Circuit has not weighed in on this issue. Due to this conflicting case law, the Court takes the cautious approach of issuing this Recommendation and having the case drawn to an Article III judicial officer.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).