United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE.
31, 2018, the court issued a memorandum and order, (Docs. 3
and 4), and denied plaintiff Amy Kush's request for
immediate injunctive relief seeking to prevent the August 3,
2018 Sheriff's sale of her property. (Doc. 1). The court
also dismissed with prejudice plaintiff's due process
claims in her complaint since the court lacked jurisdiction
over them. Further, the court directed the plaintiff to file
an amended complaint regarding only her Fourteenth Amendment
equal protection claim and her First Amendment retaliation
claim, under 42 U.S.C. §1983, on or before August 17,
being granted an extension of time, the plaintiff filed an
amended complaint on September 20, 2018. (Doc. 11).
Thereafter, motions to dismiss plaintiff's amended
complaint under Fed.R.Civ.P. 12(b)(6) were filed by
defendants Wilkes-Barre Hospital Company, LLC, (Doc. 19),
Bayview Loan Servicing, (Doc. 23), and the Diocese of
Scranton, (Doc. 42).
April 17, 2019, Judge Arbuckle issued an Order directing the
clerk of court to re-issue the summons as to defendants
Luzerne County Sheriff and the Law Firm of McCabe Weisburg
& Conway and, directing plaintiff to serve these two
defendants with her amended complaint by May 15, 2019, (Doc.
49), since there was no return of service filed regarding
these two defendants. The Order also advised plaintiff that
if she failed to timely serve the stated two defendants, it
would result in a recommendation that these defendants be
dismissed from this case.
April 30, 2019, Judge Arbuckle issued three reports and
recommendations recommending that the three motions to
dismiss be granted and that all of the claims against
defendants Wilkes-Barre Hospital Company, LLC, Bayview Loan
Servicing, and the Diocese of Scranton be dismissed with
prejudice. Plaintiff filed joint objections to all three of
Judge Arbuckle's reports.
3, 2019, plaintiff filed a motion for enlargement of time to
serve defendants Luzerne County Sheriff and the Law Firm of
McCabe Weisburg & Conway with her amended complaint,
(Doc. 57), and on May 9, 2019, the court granted
plaintiff's motion. (Doc. 59). Specifically, plaintiff
was directed to serve defendants Luzerne County Sheriff and
the Law Firm of McCabe Weisburg & Conway with her amended
complaint by June 10, 2019. Plaintiff was also forewarned
that her failure to timely serve these two defendants would
result in the dismissal of these defendants from this case,
pursuant to Fed.R.Civ.P. 4(m).
6, 2019, the court issued a Memorandum and Order adopting
Judge Arbuckle's reports and granting the motions to
dismiss of defendants Wilkes-Barre Hospital Company, LLC,
Bayview Loan Servicing, and the Diocese of Scranton. The
court also dismissed all of the claims against these three
defendants with prejudice. (Docs. 65 & 66). The case was
then recommitted to Judge Arbuckle for further proceedings
against the two remaining defendants.
19, 2019, Judge Arbuckle issued a report recommending that
defendants Luzerne County Sheriff and the Law Firm of McCabe
Weisburg & Conway be dismissed without prejudice,
pursuant to Fed.R.Civ.P. 4(m), since plaintiff failed to
timely serve them as directed by the court.
date, plaintiff has not filed an objection to Judge
Arbuckle's report and the time within which to do so has
no objection is made to a report and recommendation, the
court should, as a matter of good practice, “satisfy
itself that there is no clear error on the face of the record
in order to accept the recommendation.” Fed.R.Civ.P.
72(b), advisory committee notes; see also Univac Dental
Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469
(2010) (citing Henderson v. Carlson, 812 F.2d 874,
878 (3d Cir. 1987) (explaining judges should give some review
to every Report and Recommendation)). Nevertheless, whether
timely objections are made or not, the district court may
accept, not accept or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28
U.S.C. §636(b)(1); Local Rule 72.31.
4(m) requires district courts to dismiss a pending action
when a plaintiff fails to timely serve the opposing ...