UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

GARY L. MCCOY,

Plaintiff, Case No. 3:17-cv-432

vs.

RODNEY L. CARLSON, et al., District Judge Thomas M. Rose

Magistrate Judge Michael J. Newman

Defendants.

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REPORT AND RECOMMENDATION1 THAT PLAINTIFF’S SECOND MOTION FOR 

DECLARATTION OF COMPLETED SERVICE OF PROCESS OR, ALTERNATIVELY, 

FOR AN EXTENSION OF TIME TO COMPLETE SERVICE OF PROCESS (DOC. 31) 

BE DENIED AS MOOT 

______________________________________________________________________________

This civil case is before the Court on Plaintiff’s motion (doc. 31) seeking a declaration that 

he completed service of process on Defendants Carlson and Conley or, alternatively, seeking an 

extension of time to complete service on theses Defendants.

2

 Defendants Carlson and Conley filed 

no opposition to Plaintiff’s motion, and the time for doing so expired.

Defendants Carlson and Conley have now both filed a combined motion seeking, pursuant 

to Fed. R. Civ. P. 12(b)(6), to dismiss the operative complaint for failure to state a claim. See doc. 

61. Defendants’ motion to dismiss remains pending for the Court’s consideration and will be 

decided by separate entry. In their combined motion to dismiss, Defendants do not seek dismissal

for insufficient process or service under Fed. R. Civ. P. 12(b)(4) or (5). Accordingly, Defendants 

Carlson and Conley have waived any defense regarding insufficient process or service of process. 

 

1 Attached hereto is a NOTICE to the parties regarding objections to this Report and 

Recommendation. 

2 At the time Plaintiff filed the subject motion, Defendants Carlson and Conley were the only named 

Defendants in the case. Plaintiff subsequently filed an amended complaint with leave of Court. That 

amended complaint added additional parties.
2

See Fed. R. Civ. P. 12(g) and (h); see also Rule 12(h) 1966 Advisory Committee Notes (“certain 

specified defenses which [are] available to a party when [making] a preanswer motion, but . . .

omitted from the motion, are waived. The specified defenses are lack of jurisdiction over the 

person, improper venue, insufficiency of process, and insufficiency of service of process”).

Therefore, the declaration Plaintiff seeks regarding completed service need not be made by 

the Court. Accordingly, the undersigned RECOMMENDS that Plaintiff’s second motion for a 

declaration of completed service or alternative motion for extension of time to obtain service (doc. 

31) be DENIED AS MOOT.

Date: February 4, 2019 s/ Michael J. Newman

Michael J. Newman

United States Magistrate Judge
3

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections 

to the proposed findings and recommendations within FOURTEEN days after being served with 

this Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if 

served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, 

this Report and Recommendation was served upon you by mail, this deadline is extended to 

SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the 

deadline to file objections by filing a motion for extension, which the Court may grant upon a 

showing of good cause. 

Any objections filed shall specify the portions of the Report and Recommendation objected 

to, and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendation is based, in whole or in part, upon matters occurring of record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. 

A party may respond to another party’s objections within FOURTEEN days after being 

served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. 

P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If, 

however, this Report and Recommendation was served upon you by mail, this deadline is extended 

to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). 

Failure to make objections in accordance with this procedure may forfeit rights on appeal. 

See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 

(6th Cir. 1981).