Free Report and Recommendation - District Court of Arizona - Arizona

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Case 2:03-cv-01344-EHC-HCE Document 216 Filed 03/15/2006 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Shannon Michael Clark, Plaintiff, vs. Value Options, Inc., et al., Defendants.

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No. CV 03-1344-PHX-EHC (MS) REPORT AND RECOMMENDATION

Pending before the Court is Defendant ValueOptions' Motion to Strike Plaintiff's Newly Discovered Evidence Opposing Summary Judgment (Doc. # 214) and Defendant ValueOptions' Notice to Court of Plaintiff's Failure to Comply with Court Order (Doc. # 215). Defendant ValueOptions requests that the Court strike Plaintiff's Motion for Leave to File Newly Discovered Evidence (Doc. # 211) as all of Plaintiff's proffered evidence is inadmissible under the Federal Rules of Evidence. Further, Defendant ValueOptions requests that this Court dismiss Defendants Marshall and Crumbley as Plaintiff has failed to effect service on either Defendant within the 60 days permitted by the Court. (See Doc. # 180). As to Plaintiff's Motion for Leave to File Newly Discovered Evidence, the undersigned will recommend that Defendant ValueOptions' Motion to Strike be granted. Plaintiff averred in his motion that information received from Governor Janet Napolitano's office on December 14, 2005 lead to probative information from

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an outside source, and requested that the new information be considered during summary judgment proceedings and filed under seal. However, the documents submitted to the Court for consideration have not been properly authenticated and are inadmissible hearsay, and cannot be used during the pending summary judgment proceedings. As to Defendant ValueOptions request to have Defendants Marshall and Crumbley dismissed from this action, the undersigned will recommend that Defendants Marshall and Crumbley be dismissed from this action pursuant to Fed. R. Civ. P. 4(m) and Rule 16.2(b)(2)(B)(i) of the Local Rules. On March 6, 2006 Plaintiff submitted a Notice of Service of Defendant Karen Marshall (Doc. # 213). In his Notice, Plaintiff avers that he had to obtain a service packet from another inmate to effect service on Defendant Karen Marshall because he did not receive the service packets that the Court mailed to Plaintiff. The Court's docket reflects that two service packets were mailed to Plaintiff on December 8, 2005. On December 27, 2005, the Court provided Plaintiff an additional 20 days (apart from the 60 days provided on December 8, 2005) to effect service on Defendants Marshall and Crumbley. That deadline expired on February 27, 2006. After Plaintiff's Notice to the Court Regarding Service Packets filed on December 23, 2005 (Doc. # 193), Plaintiff has not requested more time or other service packets to effect service on either Defendant Marshall or Defendant Crumbley. Plaintiff has had over a year and a half to effect service on Defendants Marshall and Crumbley without success. Plaintiff's attempt to effect service on Defendant Marshall is outside the time provided by the Court. Moreover, Plaintiff still has not effected service on Defendant Crumbley. Accordingly, the undersigned will recommend that Defendants Marshall and Crumbley be dismissed from this action without prejudice. In accordance with the foregoing,

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IT IS RECOMMENDED THAT Defendant ValueOptions' Motion to Strike Plaintiff's Newly Discovered Evidence Opposing Summary Judgment (Doc. # 214) be GRANTED. IT IS FURTHER RECOMMENDED THAT Defendants Marshall and Crumbley be DISMISSED without prejudice from this action pursuant to Fed. R. Civ. P. 4(m) and Rule 16.2(b)(2)(B)(i) of the Local Rules. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. 28 U.S.C. §636(b)(1) and Rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. DATED this 14th day of March, 2006.

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