Opinion
Case No.: 5:07cv88/RH/EMT.
May 11, 2007
ORDER
Plaintiff, appearing pro se, initiated this action by filing a complaint under 42 U.S.C. § 2000e-5, Title VII of the Civil Rights Act of 1964 (Doc. 1). The filing fee has been paid ( see id.).
Plaintiff is informed that it is his responsibility to formally serve the complaint so that Defendant may be given an opportunity to respond to his allegations. In light of Plaintiff's pro se status, the court will provide him with information concerning service. To effect service of process, Defendant must be delivered a copy of the complaint and a summons that is issued to Plaintiff by the clerk of court. Service may be effected by any person who is at least 18 years of age and is not a party to this action.
Plaintiff must effect service in accordance with 4(h), which governs service on corporations and unincorporated associations that are subject to suit under a common name and from which a waiver of service has not been obtained and filed. Rule 4(h)(1) provides that service shall be effected in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process, and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to Defendant. Rule 4(e)(1), governing service upon individuals, provides that service may be effectuated pursuant to the law of the state in which the district court is located, or in which service is effected.
Alternatively, Fed.R.Civ.P. 4(d) allows Plaintiff the option of sending Defendant a notice of the commencement of the action and a request that Defendant waive formal service of process. If Defendant fails to return the waiver form (which Plaintiff must enclose), Plaintiff must formally serve Defendant, and Defendant may be liable for the costs of formal service. Plaintiff should thoroughly review Rule 4 before attempting service by either of the above methods.
Finally, Plaintiff is advised that he is responsible for service within 120 days, or the cause may be dismissed. Further, if service is not waived, Plaintiff shall make proof thereof to the court. See Fed.R.Civ.P. 4(l) and (m).
Accordingly, it is ORDERED:
1. The clerk of court shall forthwith issue a summons for Defendant and send the summons to Plaintiff. The clerk shall also send Plaintiff a copy of the waiver of service form for his use. The clerk shall additionally send Plaintiff an additional copy of this order, and Plaintiff shall accompany the complaint with the copy of this order. Plaintiff shall be responsible for prompt service of the complaint upon Defendant.
2. After a response to the complaint has been filed by Defendant, Plaintiff shall be required to mail to the attorney for Defendant a copy of every pleading or other paper submitted for consideration by the court. Plaintiff shall include with the original paper to be filed with the clerk of court a "certificate of service" which states the date a correct copy of the paper was mailed to Defendant or to the attorney representing Defendant. Any paper submitted for filing after a response to the complaint has been filed by Defendant which does not contain a "certificate of service" shall be returned by the clerk and disregarded by the court.
3. In accordance with 28 U.S.C. § 636(c)(2), the clerk shall forward to Plaintiff a form for consenting to trial by the magistrate judge, with the case number written on it. Plaintiff is not required to consent, but if Plaintiff wishes to consent, he should sign the form and forward it to Defendant or counsel for Defendant, who shall return it to the clerk only if Defendant consents.
DONE AND ORDERED.