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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02247-WJM-KLM

DEREK SPEIGHT,

Plaintiff,

v.

FERRELL & SELDING, attorney at law,

THOMAS FERRELL, individually,

BARRY SELDIN, individually, and

CAPITAL ONE BANK N.A.,

Defendants.

_____________________________________________________________________

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

_____________________________________________________________________

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court pursuant to the Order to Show Cause issued on

October 25, 2011. Docket No. 4. The Court ordered Plaintiff to show cause why it “should

not recommend that this lawsuit be dismissed pursuant to Fed. R. Civ. P. 4(m) & 41(b).”

 [#4] at 1. Plaintiff was directed to either (1) file proof of service on Defendants, or (2)

respond in writing with an explanation of good cause for his failure to properly serve

Defendants within the deadline established by District Judge William J. Martínez. Id. at 1-2.

To date, Plaintiff has neither filed a response to the Order to Show Cause nor requested

an extension of time to do so. Further, there is no indication on the docket that Plaintiff has

effected service on Defendants. Plaintiff has not contacted the Court in any manner.

Plaintiff initiated this lawsuit pro se on August 26, 2011. Docket No. 1. On August

30, 2011, Judge Martínez instructed Plaintiff to effect service of the summons and

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 No mail has been returned to the Court as undeliverable, thus the Court presumes that

Plaintiff has received all mailings.

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 See Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007) (noting that

Court has inherent authority to consider sua sponte whether a case should be involuntarily

dismissed due to Plaintiff's failure to prosecute); 9 Charles Alan Wright & Arthur R. Miller, Federal

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complaint on Defendants pursuant to Fed. R. Civ. P. 4 within thirty days, setting the

deadline for service as September 29, 2011. Docket No. 2. To date, there is no indication

on the docket as to whether service was timely effected, and no Defendant has made an

appearance through counsel or otherwise. 

The Court notes that the time for service pursuant to Fed. R. Civ. P. 4(m) does not

expire until December 26, 2011, as Plaintiff filed his Complaint on August 26, 2011 [#1].

However, Plaintiff’s failure to comply with the District Judge’s Order to complete service

interferes with the Court’s setting of a Scheduling Conference. Moreover, the Court warned

Plaintiff that his failure to comply with the obligations imposed by the Order to Show Cause

would “result in this Court issuing a recommendation that this case be dismissed without

prejudice.” [#4] at 2. Plaintiff has had ample notice and time in which to facilitate service

on Defendants, yet he has failed to do so. Moreover, Plaintiff has blatantly disregarded the

District Judge’s Order to complete service, as well as the undersigned’s Order to Show

Cause.1

 At this stage of the proceeding, it is clear to the Court that Plaintiff has no intention

of completing service as ordered, or has any interest in prosecuting this lawsuit

whatsoever. Accordingly,

IT IS HEREBY ORDERED that the Order to Show Cause [#4] is made ABSOLUTE.

The Court respectfully RECOMMENDS that this case be DISMISSED WITHOUT

PREJUDICE, pursuant to Fed. R. Civ. P. 4(m) and 41(b).2

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Practice and Procedure § 2369, at 576-77 & n.1 (3d ed. 2008).

The Court recommends this case be dismissed without prejudice. Dismissal with prejudice

"represents an extreme sanction appropriate only in cases of willful misconduct," and should be

used "as a weapon of last, rather than first, resort," particularly in pro se cases such as this case.

Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992). See also Butler v. Butierres, 227 F.

App'x 719, 720 (10th Cir. 2007) (remanding dismissal with prejudice for determination of

willfulness); Cosby v. Meadors, 351 F.3d 1324, 1334 (10th Cir. 2003) ("We caution, however, that

our review of Plaintiff's egregious misconduct should not be interpreted as suggesting that equally

egregious misconduct is necessary to justify dismissal with prejudice."). 

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IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall

have fourteen (14) days after service of this Recommendation to serve and file any written

objections in order to obtain reconsideration by the District Judge to whom this case is

assigned. A party's failure to serve and file specific, written objections waives de novo

review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,

474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal

questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.

Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review

by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73

F.3d 1057, 1060 (10th Cir. 1996).

Dated: November 15, 2011

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