Opinion
19-CV-3218 (JGK) (KHP)
10-05-2020
XIAMIN ZENG, Plaintiff, v. JOHN CHELL, et al., Defendants.
AMENDED ORDER OF SERVICE
KATHARINE H. PARKER, United States Magistrate Judge.
It has been brought to the Court's attention that the Plaintiff's Amended Complaint (ECF No. 43) has not been served on two individual Defendants, Erlene Wiltshire and Irwin Luperon. Because Plaintiff has been granted permission to proceed in forma pauperis ("IFP"), she is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve all process . . . in [IFP] cases."); Fed. R. Civ. P. 4(c)(3) (the Court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP). Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that the summons and complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summons and complaint until the Court reviewed the complaint and ordered that summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. If the amended complaint is not served within that time, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff's responsibility to request an extension of time for service); see also Murray v. Pataki, 378 F. App'x 50, 52 (2d Cir. 2010) (summary order) ("As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals' failure to effect service automatically constitutes 'good cause' for an extension of time within the meaning of Rule 4(m).").
CONCLUSION
To allow Plaintiff to effect service on Defendants Wiltshire and Luperon through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form ("USM-285 form") for each of these Defendants using the information provided in the attached Addendum. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon these Defendants.
The Clerk of Court is directed to mail a copy of this order to Plaintiff.
SO ORDERED.
Dated: New York, New York
October 5, 2020
/s/_________
KATHARINE H. PARKER
United States Magistrate Judge
ADDENDUM
THE CITY OF NEW YORK LAW DEPARTMENT JAMES E. JOHNSON Corporation Counsel September 30, 2020 BY ECF
Judge Katharine H. Parker
United States Magistrate Judge
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007 Re: Zeng v. Chell, et al.,
19-CV-3218 (JGK) Dear Judge Parker:
I am an Assistant Corporation Counsel in the Special Federal Litigation Division of the New York City Law Department, and the attorney assigned to the defense of the above-referenced matter. In that capacity, and pursuant to the telephonic status conference held on September 23, 2020 before Your Honor, the undersigned writes to provide the Court and plaintiff, the following services addresses for the following defendants:
• Erlene Wiltshire
1 Police Plaza
Room 110C
New York, NY 10038
• Police Officer Irwin Luperon, Shield No. 27763
New York Police Department 75th Precinct
1000 Sutter Ave
Brooklyn, NY 11208
Defendants thank the Court for its time and attention to this matter.
Respectfully submitted,
/s/_________
Stephanie De Angelis
Assistant Corporation Counsel cc: By E-MAIL
Xiamin Zeng
Plaintiff Pro Se
110 Columbia Street
Apt. 1A
New York, NY 10002