Baumbach v. Dennis

• Court: District Court, D. Arizona
• Decided: August 5, 2021
• Docket: 2:20-cv-01481
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jonathan Baumbach, No. CV-20-01481-PHX-GMS

10 Plaintiff, ORDER

11 v.

12 David Dennis, et al.,

13 Defendants. 14 15 16 Pending before the Court is a Report and Recommendation (“R&R”) (Doc. 27) 17 issued by Magistrate Judge Camille D. Bibles recommending that the Court dismiss the 18 Plaintiff’s claims without prejudice for failure to timely effect service of process on the 19 only defendant remaining in this matter. Petitioner timely filed an objection to the R&R. 20 (Doc. 28.) The Court overrules Plaintiff’s objection and adopts the R&R. 21 BACKGROUND 22 Plaintiff has not effected service of process upon Defendant David Dennis 23 (“Defendant Dennis”), who is the only remaining Defendant in this action. The Magistrate 24 Judge initially ordered Plaintiff to effect service on Defendant Dennis no later than 25 November 3, 2020. (Doc. 12 at 9.) The order warned: “If Plaintiff fails to timely comply 26 with every provision of this Order, including these warnings, the Court may dismiss this 27 action without further notice.” Id. On October 21, 2020, service on Defendant Dennis was 28 returned unexecuted. (Doc. 14.) The court thereafter ordered Director Shinn to file 1 Defendant Dennis’ current duty station, or if he was no longer employed by the Arizona 2 Department of Corrections, Rehabilitation, and Reentry, his last known home address. 3 (Doc. 15.) The Magistrate Judge extended the deadline to effect service on Defendant 4 Dennis to December 4, 2020. Id. 5 Director Shinn provided Defendant Dennis’ last known home address, but service 6 was again returned unexecuted on February 1, 2021. (Doc. 20.) The court subsequently 7 ordered Plaintiff to show cause for his failure to effectuate service by the deadline. 8 (Doc. 21.) Plaintiff has not effected service since the February 3, 2021 Order to Show 9 Cause. (Doc. 21.) 10 DISCUSSION 11 I. Standard of Review 12 A “district judge may refer dispositive pretrial motions, and petitions for writ of 13 habeas corpus, to a magistrate [judge], who shall conduct appropriate proceedings and 14 recommend dispositions.” Thomas v. Arn, 474 U.S. 140, 141 (1985); see also 28 U.S.C. 15 § 636(b)(1)(B); Estate of Connors v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party 16 “may serve and file written objections” to a report and recommendation by a magistrate 17 judge. 28 U.S.C. § 636(b)(1). “A judge of the court shall make a de novo determination of 18 those portions of the report or specified findings or recommendations to which objection 19 is made.” Id. District courts, however, are not required to conduct “any review at all . . . of 20 any issue that is not the subject of an objection.” Arn, 474 U.S. at 149. A district judge 21 “may accept, reject, or modify, in whole or in part, the findings or recommendations made 22 by the magistrate [judge].” 28 U.S.C. § 636(b)(1). 23 II. Analysis 24 Federal courts cannot exercise personal jurisdiction over a defendant without proper 25 service of process. Omni Cap. Int’l, Ltd. v. Wolff & Co., 484 U.S. 97, 104 (1987). Federal 26 Rule of Civil Procedure Rule 4 details the manner in which service should occur. Rule 27 4(m) provides:

28 1 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 2 the action without prejudice against that defendant or order that service be 3 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. 4 5 Local Civil Rule 16.2(b)(2)(B), which governs prisoner civil rights suits, provides that 6 service shall be completed by the “maximum date to effect service as set in Rule 4(m) of 7 the Federal Rules of Civil Procedure or sixty (60) days from filing of service order, 8 whichever is later.” 9 “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely 10 on the U.S. Marshal for service of the summons and complaint, and, having provided the 11 necessary information to help effectuate service, plaintiff should not be penalized by 12 having his or her action dismissed for failure to effect service.” Puett v. Blandford, 912 13 F.2d 270, 275 (9th Cir. 1990); see 28 U.S.C. § 1915(d). Thus, where a pro se plaintiff has 14 identified a defendant for the Marshalls, but the Marshals are unable to effectuate service, 15 there is good cause within the meaning of Rule 4. Penton v. Pool, 724 Fed. App’x 546, 551 16 (9th Cir. 2018). Yet “[w]hile district courts have broad discretion to extend time for service 17 under Rule 4(m), ‘no court has ruled that the discretion is limitless.’” Reishaus v. Almaraz, 18 2011 WL 1526936, at *3 (D. Ariz. Apr. 21, 2011) (quoting Efaw v. Williams, 473 F.3d 19 1038, 1041 (9th Cir. 2007)). Plaintiffs bear the responsibility of providing the Marshals 20 with accurate and sufficient information to effect service. Allen v. Comm’r of Ariz. State 21 Prison, No. CV–13–08048–PHX–GMS, 2014 WL 2435685, at *3 (D. Ariz. May 30, 2014); 22 see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), overruled on other grounds 23 by, Sandin v. Conner, 515 U.S. 472 (1995). 24 Here, Plaintiff did not effectuate service by the deadline. Although, in response to 25 the order to show cause, he opined that he was unable to locate Defendant Dennis, and 26 requested that the Court appoint counsel or issue subpoenas to assist him in doing so, 27 Plaintiff is not entitled to counsel and the Court may not take on an investigatory role on 28 behalf of a pro se litigant. Pliler v. Ford, 542 U.S. 225, 231 (2004) (“Requiring district 1 || courts to advise a pro se litigant . . . would undermine district judges’ role as impartial 2|| decisionmakers.”); Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (internal quotation omitted) (“The decision to appoint such counsel is within the sound 4|| discretion of the trial court and is granted only in exceptional circumstances.”). 5 Plaintiff's objection indicates no progress in complying with this obligation to 6 || provide the Marshals with usable information. (Doc. 28) (requesting additional time as he awaits responses from several organizations known to assist pro se litigants). As several 8 || months have now passed from the extended deadline, Plaintiff has failed to meet his 9|| obligation of providing the Marshals sufficient information to effect service. The Court || thus finds that Plaintiffs claims are dismissed without prejudice for Plaintiff's failure to 11 |} timely effect service of process on Defendant Dennis. 12 CONCLUSION 13 Plaintiffs claims are dismissed without prejudice for failure to effect service on the || remaining defendant in this matter. 15 IT IS THEREFORE ORDERED that Plaintiff Jonathon Baumbach’s Objection || to the Report and Recommendation (Doc. 28) is OVERRULED. 17 IT IS FURTHER ORDERED that the Report and Recommendation of Magistrate 18 || Judge Camille D. Bibles (Doc. 27) is ADOPTED. 19 IT IS FURTHER ORDERED that Plaintiff's remaining claims are dismissed 20 || without prejudice. 21 IT IS FURTHER ORDERED directing the Clerk to terminate this action without 22 || prejudice and enter judgment accordingly. 23 Dated this 4th day of August, 2021. 24 - 35 A Whacrsay Sooo) Whicren 26 Chief United states District Judge 27 28

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