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El-Hosseiny v. Wiggen

United States District Court, S.D. Mississippi, Eastern Division

September 3, 2019




         This cause is before the Court on Report and Recommendation [23] entered by Magistrate Judge Michael T. Parker recommending that Defendant, by dismissed without prejudice. The Plaintiff, Samir El-Hosseiny has filed an Objection [24] to the Report and Recommendation. The Court has considered same and the pleadings filed herein and does hereby find as follows to wit:


         Plaintiff filed his Complaint [1] against Defendant Craig Robert Wiggen and Defendant on January 18, 2019, alleging that they had defamed him, intentionally inflicted emotional distress, put him in a false light, and misappropriated his name and likeness for commercial gain. Plaintiff was granted in forma pauperis status on January 23, 2019, and the Court directed the United States Marshal Service to serve process on defendant Wiggen [3] and [5]. The Court did not direct service on because plaintiff had not provided a name or address for any agent for service of process and ordered plaintiff to respond with such information by February 15, 2019 [5]. Plaintiff responded but his response [7] was vague, and then plaintiff moved to serve through email or Rmail [12] and [13]. His motions were denied by Judge Parker and plaintiff was informed that he had failed to provide the Court with the necessary information to serve [15]. Plaintiff was again directed to provide a physical address and a name for an agent for service of process for by May 31, 2019 [15]. Plaintiff then responded [18] but the information was insufficient for service. Plaintiff responded but did not furnish the Court with sufficient information to serve process and stated that is basically a website but he does not know where the activity occurs. Judge Parker found that the plaintiff had not properly identified sufficiently for process to be issued, and more than 120 days had elapsed since plaintiff filed his lawsuit and had not been served. As a result, Judge Parker recommended dismissal of without prejudice [23].


         When a party objects to a Report and Recommendation this Court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). See also Longmire v. Gust, 921 F.2d 620, 623 (5th Cir. 1991) (Party is “entitled to a de novo review by an Article III Judge as to those issues to which an objection is made.”) Such review means that this Court will examine the entire record and will make an independent assessment of the law. The Court is not required, however, to reiterate the findings and conclusions of the Magistrate Judge. Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993) nor need it consider objections that are frivolous, conclusive or general in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1997). No. factual objection is raised when a petitioner merely reurges arguments contained in the original petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).


         In his Objection plaintiff makes several statements as follows:

1. Plaintiff cannot provide such an address where no such address exists as is an online company website and only lists an email address as the only means to contact them, and such email address is functional as plaintiff has sent and received emails from said email address. (document 24, page 2)
2. Defendant does not have a physical address, despite Plaintiff's unwavering attempt to find one. (document 24, page 2)
3. The claim against defendant should not be dismissed since they are crucial to this claim because they and others under an unincorporated association using a common name have published on the internet defamatory statements and other harms listed in this claim about and to plaintiff. (document 24, page 2)
4. Defendant, does not provide for and appears not to have a physical address. (document 24, page3)
5. At the end of the day does not provide for or appear to have a physical address in which it may be served process by a U.S. Marshal Service of Process as required by honorable court's Orders. Plaintiff after sincere due diligence now does not believe there is an actual “brick and mortar” physical address for defendant except the physical address of creator and one of the owners of defendant, defendant Craig Robert Wiggen. (document 24, page 3)

         Plaintiff cites to the Court F.R.C.P 17(b)(3)(A) and claims that ...

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