Holcomb v. California Board of Psychology

Full title: HOLCOMB, Plaintiff, v. CALIFORNIA BOARD OF PSYCHOLOGY, et al., Defendants.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Nov 10, 2015

2:15-cv-02154-KJM-CKD (E.D. Cal. Nov. 10, 2015)

Opinion

HOLCOMB, Plaintiff, v. CALIFORNIA BOARD OF PSYCHOLOGY, et al., Defendants. No. 2:15-cv-02154-KJM-CKD United States District Court, E.D. California. November 10, 2015

ORDER

KIMBERLY J. MUELLER, District Judge.

On November 6, 2015, plaintiff, represented by counsel, moved ex parte for an order that service of process be effected by a United States marshal. ECF No. 9. As explained below, the court GRANTS plaintiff's motion.

Rule 4 of the Federal Rules of Civil Procedures provides that "[t]he plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m)." Fed.R.Civ.P. 4(c)(1). Subsection (c)(3) of Rule 4 allows the court to order that service be made by a United States marshal or deputy marshal at the plaintiff's request. Fed.R.Civ.P. 4(c)(3). "The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916." Id.

The court recognizes that courts rarely order that service be made by a United States marshal when the plaintiff is not proceeding in forma pauperis or as a seaman. The plain language of Rule 4(c)(3), however, leaves district courts with discretion to order service by a marshal in other circumstances.

Here, plaintiff has provided declarations showing that she has made a number of unsuccessful attempts to serve the defendant members of the California Board of Psychology. ECF Nos. 10-11. Plaintiff has further shown that the Board meetings in San Diego on November 12, 2015 and November 13, 2015 may provide the best opportunity to serve the defendants, and that the security at the Board meetings will likely preclude plaintiff from serving the defendants absent the support of law enforcement. ECF No. 10. In light of these unusual circumstances, and to promote the efficient resolution of this action, the court exercises its discretion to GRANT plaintiff's ex parte motion that service of process be effected by a United States marshal (ECF No. 9).

The court makes the following orders:

1. Plaintiff is ORDERED to deliver copies of the summons and complaint and the Form USM-285 to the U.S. Marshals Service no later than close of business today.

2. The U.S. Marshals Service is ORDERED to effect service on the defendant members of the Board of Psychology in attendance at the Board meetings in San Diego on November 12, 2015 and November 13, 2015, as directed by plaintiff on the Form USM-285. Plaintiff is responsible for all costs of service.

3. The U.S. Marshals Service is further ORDERED to file a report with the court no later than November 20, 2015 notifying the court of which defendants it successfully served. Plaintiff will be responsible for effecting service on any defendant the marshal is unable to serve at the Board meetings on November 12 and 13, 2015.

IT IS SO ORDERED.