Opinion
Civil Action No. 12-cv-00174-MSK-BNB
06-14-2012
LINDA JOYCE HOLBERT, Plaintiff, v. THE CITY OF COLORADO SPRINGS, FIRST TRANSIT, INC., and JOHN DOE, Defendants.
Magistrate Judge Boyd N. Boland
ORDER
This matter arises on the following motions filed by the plaintiff:
1. Motion Requesting to Amend the Complaint, Summon[s] and Civil Cover Sheet [Doc. #13] (the "First Motion");
2. Motion Requesting the Submission of a Corrected Copy of Motion for Extension of Time to Serve [Doc. #15] (the "Second Motion"); and
3. Corrected Copy of the Motion for Extension of Time to Serve [Doc. #16] (the "Third Motion").
In her First Motion, the plaintiff seeks to amend the Complaint, the Summons, and the Civil Cover Sheet. The exact nature of the amendment is not clear. The plaintiff states that she has been attempting to serve defendant First Transit, Inc., but has been unsuccessful in obtaining a proper address for service. The plaintiff complains that she has been given inaccurate information by defendant City of Colorado and others regarding the address and that she has attempted service by mail and facsimile. She further complains that "I feel that the treatment that I received when I requested an address for First Transit, Inc. was abusive, misleading and a waste of money that could and should not have been done." Motion, p. 5. She states "I want the correct defendants to place on the Summon[s], Complaint, and Cover Sheet. This is why I am requesting the amendment." Id.
The Federal Rules of Civil Procedure provide that a motion must "state the relief sought" and "state with particularity the grounds for seeking the order." Fed.R.Civ.P. 7(b). The First Motion is incomprehensible and fails to specify either any grounds for relief or the precise nature of the relief sought. The First Motion is DENIED.
The Second Motion states:
I, Linda Joyce Holbert, am asking for a motion requesting the submission of a corrected copy of motion for extension of time to serve for the reasons listed below:
1. I did not state the time I needed to serve the Summon[s] and Complaint.
2. I need to find out the correct address to send the Summon[s] and Complaint to.
It appears that the plaintiff is requesting permission to file a corrected copy of the First Motion. The Second Motion is unnecessary. The plaintiff may submit a corrected motion without seeking leave of court. The Second Motion is GRANTED, but the plaintiff is cautioned to cease filing unnecessary motions.
The Third Motion is a reiteration of the First Motion, but the plaintiff includes a request for an extension of fifteen days to serve First Transit, Inc. The plaintiff states that she "want[s] more time to call and find out the correct address to send the summon[s] and complaint to."
It appears that the plaintiff's attempts at service are not in compliance with Rule 4, Fed. R. Civ. P., which provides that a corporation must be served "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and--if the agent is one authorized by statute and the statute so requires--by also mailing a copy of each to the defendant" or by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Fed. R. Civ. P. 4(h)(1). The Colorado Rules of Civil Procedure provide for service of a corporation by "delivering a copy thereof to the registered agent for service as set forth in the most recently filed document in the records of the secretary of this state." Colo. R. Civ. P. 4(e)(4). Responsibility for obtaining a correct address and timely and properly serving the defendant lies with the plaintiff.
In addition, the Federal Rules of Civil Procedure require that a plaintiff serve the defendant within 120 days after filing the Complaint:
If a defendant is not served within 120 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. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.Fed. R. Civ. P. 4(m).
The 120 days for service provided in Rule 4(m) expired on May 22, 2012. Accordingly,
IT IS ORDERED:
1. The First Motion is DENIED;
2. The Second and Third Motions are GRANTED;
3. All future motions shall comply with Rule 7, Fed. R. Civ. P.;
4. The plaintiff shall cease filing unnecessary motions; and
5. On or before June 29, 2012, the plaintiff shall file proof of service of process on defendant First Transit, Inc. Fed. R. Civ. P. 4(h), (l), and (m). Failure to file proof of service on or before June 29, 2012, may result in dismissal without prejudice of defendant First Transit, Inc.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge