govinfo:USCOURTS-pawd-3_23-cv-00219-5

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IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA 
 
 
MICHAEL COCKERHAM, 
 
 Plaintiff, 
 
 v. 
 
PAUL DEFFENBAUGH et al., 
 
 Defendants. 
 
 
 
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Civil Action No. 23-219-J 
 
 
 
 
 
MEMORANDUM ORDER 
 This matter comes before the Court after Plaintiff Michael Cockerham (“Plaintiff”) 
declined to file objections to the Report and Recommendation (Docket No. 66) (“R&R”) entered 
by Magistrate Judge Keith A. Pesto on January 29, 2026. The R&R recommends that the Motion 
for Sanctions (Docket No. 63) filed by Defendant Paul Deffenbaugh1 be granted, that this case be 
dismissed, and that no attorney fees or costs be imposed on Plaintiff . (Docket No. 66 at 1, 3). 
Service of the R&R was made on the parties through CM/ECF and/or U.S. mail, and the parties 
were informed that any objections to same were due by February 12, 2026, while objections to 
same for Unregistered CM/ECF Users were due by February 17, 2026. (Id. at 4 and Docket text 
entry). Thereafter, no objections to the R&R were filed.2 
The Federal Rules of Civil Procedure provide that a party may file specific written 
objections to the proposed findings and recommendations of a magistrate judge, and a district 
judge must conduct a de novo review of any part of the R&R that has been prope rly objected to. 
 
1 Defendant Deffenbaugh and Defendant Price , the two named Defendants (other than John Does 1 -3) are 
represented by the same counsel in this case , although the Motion for Sanctions was filed on behalf of Defendant 
Deffenbaugh only. 
 
2 The referral of this case was reassigned to Magistrate Judge Peter E. Ormsby on April 3, 2026. 

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See Fed. R. Civ. P. 72(b)(2), (3); 28 U.S.C. § 636(b)(1). Here, however, because Plaintiff did not 
file objections to the R&R – which explicitly stated, “ In the absence of timely and specific 
objections, any appeal would be severely hamp ered or entirely defaulted” – we review the 
magistrate judge’s decision for plain error. (Docket No. 66 at 4). EEOC v. City of Long Branch, 
866 F.3d 93, 100 (3d Cir. 2017); see Brightwell v. Lehman , 637 F.3d 187, 193 (3d Cir. 2011) 
(citing Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007)); see also Fed. R. Civ. P. 72(b) Advisory 
Committee’s Note to 1983 Addition (“When no timely objection is filed, the court need only satisfy 
itself that there is no clear error on the face of the record in order to accept the recommendation.” 
(citing Campbell v. U.S. Dist. Ct. for N.D. Cal. , 501 F.2d 196, 206 (9th Cir.), cert. denied, 419 
U.S. 879 (1974))). 
In this case, upon careful review of the R&R and the entire record, the Court, finding no 
plain error on the face of the record, will accept Judge Pesto’s recommendation, as modified herein. 
As such, the Court will adopt the R&R, as modified, as the Opinion of the Court, grant the Motion 
for Sanctions, and dismiss Plaintiff’s case. In so ruling, the Court agrees with Judge Pesto that , 
due to Plaintiff’s refusal to participate in his deposition except under conditions satisfactory to him 
(including walking out of the deposition afte r eight minutes, following his failure to attend his 
repeatedly rescheduled deposition in 2024) – particularly after earlier discovery issues arose in this 
case and the Court previously ruled that he must sit for a deposition as set forth by the Court and 
that failure to do so without good cause w ould result in a recommendation that this matter be 
dismissed – Plaintiff is now subject to being sanctioned under Federal Rule of Civil Procedure 
37(b)(2)(A), as well as under Rule 41(b) as set forth in Poulis v. State Farm Fire & Cas. Co., 747 
F.2d 863, 868-70 (3d Cir. 1984). (Docket No. 66 at 1-2). The Court also agrees with Judge Pesto 
that, upon considera tion of the Poulis factors, because Plaintiff’s unilateral termination of his 

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deposition and his response to the Motion for Sanctions make it clear that there is no feasible way 
to bring this case to decision on the merits, this matter should be dismissed on such basis. (Id. at 
3). Nevertheless, the Court also agrees with Judge Pesto that attorney fees and/or costs should not 
be imposed on Plaintiff. (Id.). 
Additionally, the Court further agrees with Judge Pesto that, as partway into this litigation 
Plaintiff identified a “John Doe” Defendant as an individual named “Church” and Judge Pesto 
permitted amendment of the Complaint in September 2025, and as Judge Pesto instructed Plaintiff 
regarding service on Church at that ti me and reminded him a few weeks later, yet Plaintiff has 
taken no steps to serve his Complaint on Church or ask for more time in which to effect service 
upon him, at this point – to the extent the Complaint alleges claims against Church – those claims 
should be dismissed as well. The Court will dismiss the claims alleged against Church, without 
prejudice, for failure to serve under Rule 4(m) of the Federal Rules of Civil Procedure.3 
Rule 4(m) provides that “[i]f a defendant is not served within 90 days after the complaint 
is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action 
without prejudice against that defendant or order that service be made within a specified time.” 
Fed. R. Civ. P. 4(m). In Petrucelli v. Bohringer & Ratzinger , 46 F.3d 1298 (3d Cir. 1995), the 
Court of Appeals for the Third Circuit held that a district court should utilize a two-part process in 
its analysis under Rule 4(m): 
First, the district court should determine whether good cause exists for an 
extension of time. If good cause is present, the district co urt must extend time 
for service and the inquiry is ended. If, however, good cause does not exist, the 
court may in its discretion decide whether to dismiss the case without prejudice 
or extend time for service. 
 
3 Under the circumstances presented here, the Court will dismiss the claims against Church without prejudice 
pursuant to Rule 4(m) for failure to serve , rather than dismissing such claims with prejudice pursuant to Rule 41(b) 
for failure to prosecute. See, e.g., Constantine v. Saeed, Civ. Action No. 23-21535, 2025 WL 3228238, at *2 (D.N.J. 
Nov. 19, 2025) (discussing dismissal for failure to serve under Rule 4(m) and dismissal for failure to prosecute under 
Rule 41(b)). 

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Id. at 1305. 
 In considering whether good cause exists, district courts typically evaluate: (1) the 
reasonableness of the plaintiff’s efforts to serve; (2) whether the defendants are prejudiced by the 
lack of timely service; and (3) whether the plaintiff moved for an extension of tim e in which to 
serve. See Vucish v. Phillips, No. 2:23 -CV-00786, 2024 WL 3721034, at *3 (W.D. Pa. June 4, 
2024) (internal citation omitted); Pierre v. Carter, Civ. No. 18 -5288, 2019 WL 13249013, at *2 
(E.D. Pa. Sept. 5, 2019) (citing Steele v. HCI Direct, No. Civ.A. 02-4347, 2004 WL 1699611, at 
*1 (E.D. Pa. July 29, 2004), and MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 
(3d Cir. 1995)). If good cause is not shown, a district court, in the sound exercise of its discretion, 
may still grant an extension of time in which to serve, upon consideration of factors such as: 
(1) actual notice of the case; (2) whether the defendant s are prejudiced; (3) the expiration of the 
statute of limitations; (4) the defendants’ conduct; and (5) whether t he plaintiff is represented by 
counsel. Id. at *4, 6 (citing Chiang v. U.S. Small Business Admin., 331 F. App’x 113, 116 (3d Cir. 
2009) (additional internal citations omitted)). 
 Here, as Judge Pesto noted in the R&R, Plaintiff was permitted to amend his Complaint to 
name Church as a defendant in September 2025, but despite the instructions to serve Church at 
that time and again a few weeks later, Plaintiff took no steps to effect service nor did he request 
an extension of time in which to do so. (Docket No. 66 at 1 ). Additionally, Judge Pesto ordered 
Plaintiff to report whether he returned service paperwork for Church as he had been previously 
directed to do, and Plaintiff failed to respond to such Order. (Docket No. 64). Thus, Plaintiff has 
failed to show good c ause under Rule 4(m) for his failure to serve Church in this matter. 
Additionally, by failing to respond to Judge Pesto’s Order, Plaintiff has also failed to advance any 
other reasons which might warrant an extension of time to serve here. It is unknown whether 

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Church has notice of th is case, but needlessly dragging out an action of which a defendant is 
unaware certainly may prejudice him. It is also not known whether the statute of limitations is at 
issue here. Furthermore, there is no indication that Church’s conduct has contributed to Plaintiff’s 
failure to effect service. Finally, Plaintiff is not represented by counsel here, so he is not 
responsible for effectuating service personally, but he still must provide the Court with a motion 
and proper s ervice materials if he wishes to seek service by the United States Marshals Service 
pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure . Notably, in granting Plaintiff’s 
Motion to Proceed in forma pauperis and in permitting amendment of the Complaint to name 
Church, Judge Pesto instructed Plaintiff re garding the availability of Marshals service (Docket 
Nos. 6, 61) and mailed Plaintiff blank service paperwork and instructions for completing same, 
but Plaintiff has taken none of the steps outlined with regard to Church. 
Accordingly, the Court finds that Plaintiff has not shown good cause for his failure to serve 
Church in this case. Additionally, upon review of the above factors that courts typically consider 
in deciding whether to permit a discretionary extension of time for service, the Court will decline 
to exercise its discretion to excuse Plaintiff’s failure to serve here. Instead, the Court will dismiss 
Plaintiff’s claims in this matter against Church, without prejudice, under Rule 4(m) for failure to 
serve. 
Accordingly, in view of the foregoing, the Court enters the following Order: 
 
AND NOW, this 17th day of June, 2026, 
IT IS HEREBY ORDERED that the Report and Recommendation (Docket No. 66) is 
ADOPTED as modified herein as the Opinion of the Court, and the Motion for Sanctions (Docket 
No. 63) filed by Defendant Deffenbaugh is GRANTED. 

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IT IS FURTHER ORDERED as follows: the claims against Defendants Deffenbaugh and 
Price are DISMISSED WITH PREJUDICE pursuant to Rule 41(b) for failure to prosecute ; the 
claims against the “John Doe” Defendant that Plaintiff has identified as “Church,” as well as the 
claims against the other “John Doe ” Defendants, are DISMISSED WITHOUT PREJUDICE 
pursuant to Rule 4(m) for failure to serve; and the Court declines to impose attorney fees or costs 
on Plaintiff. 
The Clerk of Court shall mark this case closed. 
 
/s/ W. Scott Hardy 
 W. Scott Hardy 
 United States District Judge 
cc/ecf: The Honorable Peter E. Ormsby 
 Michael Cockerham (via U.S. Mail) 
 All counsel of record 

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