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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHNNY DENHAM, No. 09-12740

Plaintiff, District Judge Stephen J. Murphy, III

v. Magistrate Judge R. Steven Whalen

ALBERT LORD, ET AL.,

Defendants.

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REPORT AND RECOMMENDATION TO DISMISS

DEFENDANT PAUL D. BORJA

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 4(m), I recommend that

Defendant Paul D. Borja be DISMISSED WITHOUT PREJUDICE.

I. FACTS

On July 10, 2009, Plaintiff Johnny Denham filed a civil complaint naming three

Defendants, including Paul D. Borja. Except for Borja, all Defendants have filed either

answers or motions to dismiss. According to the docket sheet, Defendant Borja has not

been served with a summons and complaint.

Therefore, on November 10, 2009, this Court ordered Plaintiff to “show cause in

writing by December 1, 2009 why the undersigned should not issue a Report and

Recommendation that the Complaint be dismissed without prejudice as to Defendant Paul

D. Borja, for failure to serve the summons and complaint within the time prescribed by

Fed.R.Civ.P. 4(m).” See Docket #13. To date, Plaintiff has filed nothing in response to

the show cause order.

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II. DISCUSSION

Under Fed.R.Civ.P. 4(m), service of a summons must be made within 120 days of

the filing of the complaint. Rule 4(m) also provide:

“If service of the summons and complaint is not made upon a defendant

within 120 days after the filing of the complaint, the court, upon motion or

on its own initiative after notice to the plaintiff, shall dismiss the action

without prejudice as to that defendant....” (Emphasis added).

Notice having been given to the Plaintiff, this action should be dismissed without

prejudice as to Defendant Paul D. Borja.

III. CONCLUSION

I therefore recommend that this actions be DISMISSED WITHOUT PREJUDICE

as to Defendant Paul D. Borja.

Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof, including weekends and intervening holidays, as

provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file

specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474

U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d

505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of

objections which raise some issues but fail to raise others with specificity will not

preserve all the objections a party might have to this Report and Recommendation. Willis

v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local

231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy

of any objections is to be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed

objections, including weekends and intervening holidays, the opposing party may file a

response. The response shall be not more than twenty (20) pages in length unless by

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motion and order such page limit is extended by the court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: December 21, 2009

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys

and/or parties of record by electronic means or U.S. Mail on December 21, 2009.

s/Susan Jefferson 

Case Manager

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