Opinion
1:12-cv-00103 AWI GSA
01-26-2012
JEFF BRINKMAN CRANE, Plaintiff, v. BANK OF NEW YORK MELLON, et al., Defendants.
ORDER DIRECTING PLAINTIFF TO
SERVE COMPLAINT; ORDER
DIRECTING PLAINTIFF TO
COMPLETE SERVICE OF PROCESS
WITHIN 120 DAYS
PROCEDURAL BACKGROUND
On January 23, 2012, Plaintiff Jeff Brinkman Crane filed a complaint naming the following entities as defendants: (1) Bank of New York Mellon; (2) CWALT, Inc.; (3) Bank of America N.A.; (4) BAC home Loans Servicing, LP, CWALT, Inc.; (5) Recontrust Company N.A.; and (6) Mortgage Electronic Registration System, Inc. (Doc. 1.) That same date, Plaintiff filed the $350.00 filing fee. (Receipt No. CAE100017622.)
DISCUSSION
Plaintiff paid the filing fee in full upon initiating this action. Because Plaintiff is not proceeding in forma pauperis, it is Plaintiff's responsibility to effect service of the summons and complaint on the named defendants. On January 25, 2012, the Clerk of the Court issued summonses to Plaintiff for the purpose of service of process of the aforementioned named defendants. Fed. R. Civ. P. 4.
Plaintiff shall complete service of process in accordance with Rule 4 of the Federal Rules of Civil Procedure, or within 120 days from the date of service of this order. Plaintiff shall serve a copy of this order on defendants, together with a copy of the summons and complaint. The following two sections contain instruction on how to serve defendants.
A. Waiver of Service
Pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, Plaintiff may (but is not required to) notify defendants of the commencement of this action and request that defendants waive service of the summons. Fed. R. Civ. P. 4(d)(2). If Plaintiff wishes to do this, he must mail defendants (1) the form entitled "Notice of Lawsuit and Request for Waiver of Service for Summons," (2) the form entitled "Waiver of Service of Summons," and (3) a copy of the complaint. The documents must be addressed directly to defendants and must be sent via first class United States Mail. The Waiver of Service of Summons form must set forth the date on which the request is sent and must allow defendants at least thirty (30) days in which to return the waiver to Plaintiff. If defendants sign and return the waiver forms to Plaintiff, Plaintiff must then file the forms with the Court. After filing the forms with the Court, Plaintiff need not take any further steps to serve defendants. Fed. R. Civ. P. 4(d)(4).
B. Personal Service
If either (1) Plaintiff does not wish to request defendants to waive service, OR (2) any defendant fails to return the Waiver of Service of Summons form to Plaintiff, Plaintiff must have personal service effected on defendant or defendants. Each defendant must be personally served with a summons and copy of the complaint, along with a copy of this order. Plaintiff may not effect personal service himself. Fed. R. Civ. P. 4(c). Service may be effected by any person who is not a party to this action and who is at least eighteen years old. Id. The Court will provide Plaintiff with a copy of Rule 4 along with this order. More specifically, Plaintiff should review Rule 4(e)(2), which addresses how personal service may be effected.
CONCLUSION AND ORDER
In accordance with the above, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is directed to send Plaintiff the following:
(a) One (1) copy of the complaint filed January 23, 2012
(b) One (1) copy of the form entitled "Notice of Lawsuit and Request for Waiver of Service of Summons"
(c) One (1) copy of the form entitled "Waiver of Service"
(d) One (1) copy of the form entitled "Consent to Proceed Before United States Magistrate Judge" with instructions, and
(e) One (1) copy of Rule 4 of the Federal Rules of Civil Procedure;
3. Plaintiff shall complete service of process on all defendants 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 each defendant at the time of service of the summons and complaint;
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).
IT IS SO ORDERED.
Gary S. Austin
UNITED STATES MAGISTRATE JUDGE