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Malmstrom v. State of Utah Department of Children And Families

United States District Court, D. Utah, Northern Division

February 7, 2018

PARKER MALMSTROM and CRYSTAL MALMSTROM, Plaintiffs,
v.
STATE OF UTAH DEPARTMENT OF CHILDREN AND FAMILIES, et al., Defendants.

          Evelyn J. Furse Magistrate Judge.

          MEMORANDUM DECISION AND ORDER ADOPTING [105] REPORT AND RECOMMENDATION

          David Nuffer United States District Judge.

         The Report and Recommendation[1] issued by United States Magistrate Judge Evelyn J. Furse on January 16, 2018 recommends[2] that Plaintiff Parker Malmstrom’s (“Plaintiff”) claims[3]against Defendant William Nebeker (“Defendant”) be dismissed without prejudice for lack of personal and subject matter jurisdiction. On Tuesday, January 30, 2018, Plaintiffs Parker Malmstrom and Crystal Malmstrom timely filed a nearly unintelligible document entitled “Objection to Magistrate’s Decision and Order Or Motion to Set Aside Magistrate’s [sic].”[4] It attached a law review article.

         De novo review has been completed of those portions of the report, proposed findings and recommendations to which objection was made, including the record that was before the Magistrate Judge and the reasoning set forth in the Report and Recommendation.[5]

         Although styled as an objection, Plaintiffs’ filing is not sufficient. It is entirely unresponsive to the issues of personal and subject matter jurisdiction raised in the Report and Recommendations. Defendant argued in his motion to dismiss that the Court does not have personal jurisdiction over him because of Plaintiffs’ insufficient service of process.[6] “In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant.”[7] When a defendant challenges service of process, a plaintiff has the burden to show that service was proper.[8] Plaintiff did not allege in his memorandum opposing Defendant’s motion[9] or the objection to the Report and Recommendation[10] that Defendant was properly served under Fed. R. Civ. P. 4. Plaintiff therefore has failed to carry his burden to show that service on Defendant was proper.

         Additionally, “Courts . . . have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”[11] The Report and Recommendation fulfilled this obligation and Plaintiff failed to respond in any meaningful way to the determination that subject matter jurisdiction is lacking. The analysis and conclusion of the Magistrate Judge are correct. Therefore, the analysis and conclusion of the Magistrate Judge are accepted and the Report and Recommendation[12] is adopted.

         ORDER

         IT IS HEREBY ORDERED that the Report and Recommendation[13] is ADOPTED and the Defendant William Nebeker’s Motion to Dismiss[14] is GRANTED. Plaintiff Parker Malmstrom’s claims against Defendant William Nebeker are dismissed without prejudice for lack of personal and subject matter jurisdiction.

---------

Notes:

[1] Report and Recommendation: William Nebeker’s Motion to Dismiss (ECF No. 35), docket no. 105, filed January 16, 2017.

[2] Id. at 8.

[3] Pro se Plaintiff Parker Malmstrom filed his Complaint on May 16, 2017. See Complaint, docket no. 1, filed May 17, 2017. He then filed an Amended Complaint on May 16, 2017. See Amended Complaint, docket no. 3, filed May 23, 2017. The Amended Complaint joined his mother, Crystal Malmstrom, as a Plaintiff. See Id. At Oral Argument, Crystal Malmstrom clarified that she is only bringing claims against Defendant Jacob Smith. See Minute Order, Proceedings held before Magistrate Judge Evelyn J. Furse: Motion Hearing, docket no. 88, filed September 12, 2017. ...


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