Opinion
USDC #: 2:01 CV 291 TC
May 9, 2003
ORDER DISMISSING INDIVIDUALLY NAMED DEFENDANTS
Defendant State of Utah moves this court to dismiss the individually named parties for lack of service. Defendant asserts that although Plaintiff filed his complaint nearly two years ago, he has yet to serve any of the individual parties.
Docket entry 64-1.
In his response to the motion, Plaintiff concedes that he has not personally served any of the individual parties. Plaintiff also admits that his "failure to recognize and meet the requirement to serve the individuals may admittedly be a technical error." Yet, Plaintiff suggests that his failure to serve the individuals should be excused because he mistakenly believed that Magistrate Judge Boyce ordered Mr. Haggerty, Assistant Attorney General representing the State of Utah, to accept service for all defendants.
Docket entry 69-1, Plaintiff's Response at 2-3.
Id. at 8.
Plaintiff suggests that "[t]here may have been the use of professional jargon and nuance in the use of the English language by Judge Boyce rendering his instructions unrecognizable to the untrained `pro se' litigant." However, in its reply memorandum, the State of Utah attached a copy of Magistrate Judge Boyce's order entered on August 13, 2001, noting that at the time the order was entered, Plaintiff had not named any individuals in his complaint. The order plainly states that "service of the individual agencies of the State of Utah where the State has been served is superfluous and unnecessary." (Emphasis added). Clearly, the order does not suggest that Mr. Haggerty is to accept service for all individuals. The order simply states that further service upon the individual agencies was not necessary because the State of Utah had been served.
Plaintiff's response at 8.
Docket entry 72-1.
Id., Exhibit C. Docket entry 19-1.
Id. at 1.
Moreover, Plaintiff has failed to serve the individual defendants in the month since the motion to dismiss was filed. If he wanted any consideration from the Court on this point, he would have taken that step.
"Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant." Unless the procedural requirement of service of process is satisfied, a court may not assert jurisdiction over a party the plaintiff names as a defendant. "When a plaintiff proceeds against an agent of the government in his or her individual capacity, the plaintiff must effect personal service on that agent in compliance with Rule 4(d)(1)."
Murphy Bros. v. Michetti Pipe Stringing, Inc. 526 U.S. 344, 350, 119 S.Ct. 1322, 1326 (1999).
Id.
Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1438 (10th Cir. 1994). Subsequent to this cited decision, Rule 4(d)(1) was renumbered and now appears as Rule 4(e)(2).
Plaintiff admits that he has failed to served the individuals named as defendants. Furthermore, Plaintiff has not shown good cause for his failure to serve the individual parties within 120 days after filing the complaint. Consequently, pursuant to Rule 4(m), this court must dismiss this action against the individually named defendants.
"If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period."
IT IS HEREBY ORDERED that Defendant's Motion to Dismiss for Failure to Serve Individual Parties [docket entry 64-1] is GRANTED.