United States District Court, E.D. Michigan, Southern Division
Honorable Arthur J. Tarnow
REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S
COMPLAINT IN PART WITHOUT PREJUDICE FOR FAILURE TO TIMELY
R. GRAND United States Magistrate Judge
April 20, 2017, Plaintiff Duane Range
(“Plaintiff”) filed a complaint against two
groups of defendants: (1) Michael Eagan, the Michigan Parole
Board, Heidi Washington, the Michigan Department of
Corrections, Sara Flesher, and Sherry Underwood (collectively
the “State Defendants”); and (2) CPI, Inc., Scott
Montgomery, Matthew Buryta, John Knapka, and Kyle Foley
(collectively the “CPI Defendants”). (Doc. #1).
Summonses were issued to Plaintiff on April 24, 2017. (Doc.
#3). More than 90 days elapsed after Plaintiff's
complaint was filed and summonses were issued, but no proof
of service was filed showing proper service of the summons
and complaint on any of the State Defendants. Moreover, none
of the State Defendants have filed a responsive pleading or
otherwise appeared in the action.
on October 26, 2017, this Court issued an Order to Show
Cause, requiring Plaintiff to show cause, in writing, on or
before November 9, 2017, why this action should not be
dismissed, without prejudice, as against the State
Defendants, because of his failure to timely serve them
within 90 days of filing his complaint, as required by
Fed.R.Civ.P. 4(m). (Doc. #18). Despite issuance of that
Order, and despite being put on notice by both the CPI
Defendants and the Court at an October 31, 2017 motion
hearing, that there is no indication that the State
Defendants have been properly served, Plaintiff has not
responded to the Court's Order to Show Cause, nor has he
taken other steps to provide the Court with evidence that the
State Defendants were properly served.
Rule of Civil Procedure 4(m) provides that if service is not
effectuated on a defendant within 90 days of filing the
complaint, the court must dismiss the action without
prejudice as to that defendant. “Absent a showing of
good cause to justify a failure to effect timely service, the
Federal Rules of Civil Procedure compel dismissal.”
Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996)
(citing Habib v. General Motors Corp., 15 F.3d 72,
73 (6th Cir. 1994)). It is a plaintiff's burden to
establish good cause for failing to timely effectuate
service. See Habib, 15 F.3d at 73. Further, Local
Rule 41.2 provides that if the parties “have taken no
action for a reasonable time, ” the Court may enter an
order dismissing the case for lack of prosecution.
more than 90 days have elapsed since Plaintiff commenced this
action. Despite being issued an Order to Show Cause,
Plaintiff has failed to provide any explanation - let alone
good cause - for his failure to timely and properly serve the
State Defendants. Therefore, pursuant to Fed.R.Civ.P. 4(m)
and E.D. Mich. L.R. 41.2, the Court recommends that
Plaintiff's complaint be dismissed without prejudice as
against the State Defendants. See Abel v. Harp, 122
F. App'x 248, 250 (6th Cir. 2005) (citing Byrd,
94 F.3d at 219).
on the foregoing, the Court RECOMMENDS that
Plaintiff's complaint be DISMISSED IN PART
WITHOUT PREJUDICE, as against the State Defendants -
Michael Eagan, the Michigan Parole Board, Heidi
Washington, the Michigan Department of Corrections, Sara
Flesher, and Sherry Underwood - pursuant to
Fed.R.Civ.P. 4(m) and E.D. Mich. L.R. 41.2.
TO THE PARTIES REGARDING OBJECTIONS
14 days after being served with a copy of this Report and
Recommendation and Order, any party may serve and file
specific written objections to the proposed findings and
recommendations and the order set forth above. See
28 U.S.C. §636(b)(1); Fed.R.Civ.P. 72(b)(2); E.D. Mich.
LR 72.1(d)(1). Failure to timely file objections constitutes
a waiver of any further right of appeal. See Thomas v.
Arn, 474 U.S. 140, (1985); United States v.
Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). Only
specific objections to this Report and Recommendation will be
preserved for the Court's appellate review; raising some
objections but not others will not preserve all objections a
party may have. See Smith v. Detroit Fed'n of
Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987);
see also Frontier Ins. Co. v. Blaty, 454 F.3d 590,
596-97 (6th Cir. 2006). Copies of any objections must be
served upon the Magistrate Judge. See E.D. Mich. LR
may respond to another party's objections within 14 days
after being served with a copy. See Fed. R. Civ. P.
72(b)(2); 28 U.S.C. §636(b)(1). Any such response should
be concise, and should address specifically, ...