Opinion
Case No. 1:14-cv-1577 KJM GSA
08-21-2015
OTIS TOLBERT, Plaintiff, v. ANTHONY FOXX, Secretary of Transportation, Defendant.
ORDER RE: ISSUANCE OF NEW CASE DOCUMENTS
On October 8, 2014, Plaintiff Anthony Foxx ("Plaintiff"), filed a complaint against Defendant Anthony Foxx, Secretary of Transportation ("Defendant"). (Doc No. 1.) Plaintiff paid the $400 filing fee on the March 10, 2015. Because Plaintiff is not proceeding in forma pauperis, it is Plaintiff's responsibility to effect service of the summons and the complaint on Defendant. The Clerk of the Court will be directed to issue summonses to Plaintiff for the purpose of service of process. Fed. R. Civ. P. 4.
Plaintiff shall complete service of process in accordance with Federal Rule of Civil Procedure 4 within 120 days from the date of service of this Order. Plaintiff shall serve a copy of this Order on Defendant, in addition to copies of the summonses and Complaint, as well as other documents outlined in this order.
The Court strongly encourages Plaintiff to obtain an attorney in this matter as this case raises complex legal issues against a United States government official. Plaintiff is advised that he must abide by the Federal Rules of Civil Procedure, this Court's Local Rules and orders, as well as other relevant legal authority throughout this litigation. Plaintiff's attention is specifically directed to Fed. R. Civ. P 4(i) with regard to service of the summons and complaint in which the United States or an agency of the United States is named as a defendant.
Fed. R. Civ. P. 4(i) provides as follows:
(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.
(1) United States. To serve the United States, a party must:
(A) (i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought--or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk—or
(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;
(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.
(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.
(3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g). Fed. R. Civ. P. 4(i)
Plaintiff is advised that he must serve the summons and complaint in accordance with these provisions, or service will not be properly effectuated.
ORDER
In accordance with the above, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is DIRECTED to issue and send Plaintiff a summons for the Defendant named in this case;
2. The Clerk is further DIRECTED to send Plaintiff the following:
(a) One copy of the Complaint filed October 8, 2104, in this case (Doc. 1);
(b) Two copies of the form entitled "Consent to Proceed Before United States Magistrate Judge" with instructions; and
(e) A copy of Rule 4 of the Federal Rules of Civil Procedure.
3. Plaintiff shall complete service of process on Defendant within one hundred twenty (120) days from the date of service of this order. Plaintiff shall serve a copy of this order and a copy of the form "Consent to Proceed Before United States Magistrate Judge" on all Defendants at the time of service of the summons and complaint. Plaintiff shall also complete a copy of the "Consent to Proceed before United States Magistrate Judge" on his own behalf and file the completed form no later than September 30 , 2015.
4. Plaintiff's failure to timely complete service of the complaint on Defendants may result in dismissal of this action. Fed. R. Civ. P. 4(m).
5. The Clerk of the Court is directed to set a scheduling conference in this matter before the Honorable Gary S. Austin, at least 130 days from today's date. IT IS SO ORDERED.
Dated: August 21 , 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE