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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02382-LTB-KLM

PENNY HOFFERT,

Plaintiff,

v.

DAVID R. POWELSON, 

POWER WORLD, LLC,

B.W.L. HOLDINGS, LLC,

B.W.L. PARTNERSHIP, LLLP,

TRAIL RIDGE MARINA,

FIVESTAR MARINA, INC.,

FIVESTAR RENTALS,

GRAND LAKE MOTOR SPORTS,

PHLARE ORGANIZATION, LLC,

GEEZER CLUBS, LLC,

TRI-R LEASING, LLC,

TRI-R SYSTEMS CORPORATION,

TRI-R HOLDINGS, LLC,

COLORADO SPRINGS WASTE AND RECYCLING, LLC,

DATAGUARD USA, LLC,

ATTICUS, INC., and

TRM, LLC,

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 [Docket No.

36] issued on November 11, 2011. The Court ordered Plaintiff to show cause why it

“should not recommend that the case against Defendant Atticus, Inc. be dismissed

pursuant to Fed. R. Civ. P. 4(m) & 41(b).” Order to Show Cause [#36] at 2. Plaintiff was

directed to either (1) file proof of service on Defendant Atticus, Inc.; (2) respond in writing

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with an explanation of good cause for her failure to properly serve Defendant Atticus, Inc.;

or (3) provide a current address for Defendant Atticus, Inc. so as to allow the United States

Marshal to effect service. Id. Plaintiff’s deadline for compliance with the Order to Show

Cause [#36] was December 9, 2011. To date, Plaintiff has neither filed a response nor

informally contacted the Court in any manner.

Plaintiff filed this civil action on September 12, 2011 [#1]. The Amended Complaint

[#8] was filed on October 14, 2011. By an Order [#17] dated November 2, 2011, the United

States Marshal was directed to serve a copy of the Summons and Amended Complaint [#8]

on all Defendants in the above-captioned matter. On November 14, 2011, the Summons

was returned unexecuted as to Defendant Atticus, Inc. [#22]. The Return noted that “This

business is no longer in existence. Whereabouts of owner [is] unknown, according to

[Defendant] David Powelson.” Thus, no forwarding address was provided for Defendant

Atticus, Inc.

As the Court explained in its previous Order [#36], while Fed. R. Civ. P. 4(c) requires

that the Court effect service of the Summons and Complaint for a plaintiff proceeding in

forma pauperis, the plaintiff must provide sufficient information for the Court to do so. See

Hill v. Ortiz, No. 07-cv-00571-LTB-CBS, 2008 WL 2020289, at *6 (D. Colo. May 9, 2008)

(unpublished decision). The address provided by Plaintiff at the time of the Complaint’s

filing has not been sufficient to effect service on Defendant Atticus, Inc. Despite having

ample time to provide additional information about Defendant Atticus, Inc.’s address,

Plaintiff has not provided any information that the Court can use to effect service on

Defendant Atticus, Inc. 

Plaintiff’s lawsuit was filed on September 12, 2011 [#1], and Plaintiff amended her

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Complaint on October 14, 2011 [#8]. Although the United States Marshal was not directed

to effect service until November 2, 2011, Plaintiff has not provided sufficient information to

enable the Marshal to serve Defendant Atticus, Inc. Moreover, Plaintiff failed to respond

to the Order to Show Cause [#36]. At this stage, it is clear that Plaintiff cannot provide the

necessary information to effect service on Defendant Atticus, Inc.

Although the Court may extend the time for a plaintiff to serve a defendant even

without a showing of good cause, Espinoza v. United States, 52 F.3d 838, 840-41 (10th

Cir.1995), the Court is not inclined to do so here. The case against Defendant Atticus, Inc.

has been pending since September 2011. Plaintiff failed to provide sufficient contact

information for the Court to effect service on Defendant Atticus, Inc. and failed to provide

good cause for the Court to find that an opportunity exists to cure the service deficiency in

the future. Further, Plaintiff was warned in advance that the penalty for the inability to

serve or for failing to provide good cause for the service delay would be dismissal of the

case against unserved Defendant Atticus, Inc. Order to Show Cause [#36]; see generally

Raeth v. Bank One, 05-cv-02644-WDM-BNB, 2008 WL 410596, at *3 & n.4 (D. Colo. Feb.

13, 2008) (unpublished decision). Accordingly, 

IT IS HEREBY ORDERED that the Order to Show Cause [#36] is made

ABSOLUTE. 

The Court respectfully RECOMMENDS that Defendant Atticus, Inc. be DISMISSED

without prejudice, pursuant to Fed. R. Civ. P. 4(m).

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

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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: December 19, 2011

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