Opinion
23-CV-7159 (JPC) (BCM)
01-19-2024
VALBONA PEPAJ, Plaintiff, v. INNOVATIVE FACILITY SERVICE, et al., Defendants.
ORDER
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
By Order dated November 17, 2023 (Dkt. 10), the Court extended plaintiff Valbona Pepaj's deadline to serve defendants with process, giving her until January 12, 2024, to do so. On January 12, 2024, plaintiff filed: (i) an Affirmation of Service, signed by her, stating that she mailed the summons, the complaint, and waiver of service form to defendant Innovative Facility Services (IFS) by certified mail (Dkt. 14);(ii) a typed letter explaining her service efforts, reporting that defendant Alex Cabral still works for IFS, advising the Court that IFS "accepted the papers from the server for Mr. Cabral to sign and to be returned," but expressing concern that Mr. Cabral could choose "not to sign in a timely manner" (Dkt. 15); and (iii) a hand-written letter in which plaintiff recounts a phone conversation with a representative at NYLAG who, according to plaintiff, offered only to assist her with retaining paid counsel. (Dkt. 16.)
The Court notes that a defendant who is sent a valid request to waive service has 30 days from the date the request was sent to return the waiver form, Fed.R.Civ.P. 4(d)(1)(F), and has 60 days from the date the waiver request was sent to answer or otherwise respond to the complaint. Fed.R.Civ.P. 4(d)(3). If the request complies with Rule 4(d) and the defendant nonetheless fails without good cause to sign and return the waiver form, such that plaintiff is required to incur additional expenses to effect service of process on that defendant, the court "must impose" those expenses on the non-waiving defendant. Fed.R.Civ.P. 4(d)(2).
Whether Plaintiff Has Adequately Effected Service
Among the attachments to plaintiff's filings are a series of emails between Miguel J. Sampaio of MJS Investigations and Jackie Urias of KBS Services. In one email (the date of which is not displayed), Ms. Urias states:
Alex Cabral is an employee of IFS and if there is a case filed in Federal Court in NY naming Alex Cabral and IFS (which is a subsidiary of KBS), subpoena and/or summons should have been mailed to IFS address which is 1573 Henthorne [Drive, Maumee, OH 43537] or you can send to corporate KBS office in CA, 3605 Ocean Ranch Blvd., Suite 200, Oceanside, CA 92056.(Dkt. 15 at ECF p. 3.) In another email, dated January 9, 2024, Mr. Sampaio asks Ms. Urias, "Does KBS accept service via email? Or has to be mailed or served in person?" (Id. at ECF p. 4.) Also on January 9, 2024, Ms. Urias replies, "Yes, please email to kbslegaldepartment@kbs-services.com." (Id.) There is no further correspondence attached showing email service of the summons and complaint. However, plaintiff separately attaches an "Affidavit of Digital Service" signed by Mr. Sampaio, dated January 11, 2024, explaining that after he spoke with "Jackie Urias - Insurance Claims and Legal Assistant, Legal Department for KBS Services," the "parent company for Innovative Facilities Solutions," he emailed "the documents" to kbslegaldepartment@kbs-serices.com, "as well as a courtesy copy directly to the Legal Department." (Id. at ECF p. 5.)
It is not clear from Mr. Sampaio's affidavit which "documents" he sent to KBS Services. Consequently, the Court cannot determine whether plaintiff has adequately effected service of process on defendant IFS or defendant Cabral. Should defendants fail to respond to the Complaint, and should plaintiff seek the entry of a default against them, plaintiff must file a supplemental affidavit from Mr. Sampaio (i) listing all of the documents that Mr. Sampaio emailed to KBS Services, and (ii) attaching a copy of the email that Mr. Sampaio sent, including its attachments.
Proceeding In Forma Pauperis
The Court notes that even though plaintiff paid the filing fee to initiate this action, she may be entitled to proceed in forma pauperis (IFP), which would entitle her to rely on the United States Marshals Service, if necessary, to serve the summons and complaint upon defendants. See 28 U.S.C. § 1915(a)(1), (d).
The ability to proceed IFP is a "privilege provided for the benefit of indigent persons." Cuoco v. U.S. Bureau of Prisons, 328 F.Supp.2d 463, 467 (S.D.N.Y. 2004) (quoting Chung v. Dushane, 2003 WL 22902561, at *2 (N.D. Ill.Dec. 9, 2003)). There is no pre-set income or asset level that qualifies a plaintiff for IFP status, and the plaintiff need not "demonstrate absolute destitution." Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983). However, "he or she must demonstrate poverty to qualify." Shabtai v. Levande, 2013 WL 6116850, at *1 (E.D.N.Y. Nov. 20, 2013). District courts have broad discretion to determine whether a litigant has sufficiently demonstrated poverty. Id. If IFP status is granted, it "does not exempt litigants from the costs of copying and filing documents; service of documents other than the complaint; costs; expert witness fees; or sanctions." Porter v. Dep't of Treasury, 564 F.3d 176, 180 n.3 (3d Cir. 2009) (internal citations omitted).
In order to apply to proceed IFP, a plaintiff must complete the form entitled, "Application to Proceed Without Prepaying Fees or Costs," which is available on this Court's website. For plaintiff's convenience, a copy of the form is appended to this Order.
SO ORDERED.