Opinion
23 Civ. 7642 (LGS)
01-02-2024
WILLIAM SCALES, Plaintiff, v. ACE HOTEL NY, Defendant.
ORDER OF SERVICE
LORNA G. SCHOFIELD, United States District Judge:
Plaintiff, who is appearing pro se, brings this action asserting claims regarding his employer-sponsored 401(k) plan. By order dated September 29, 2023, the Court granted Plaintiff's request to proceed in forma pauperis (IFP), that is, without prepayment of fees.
DISCUSSION
A. Service on Defendant Ace Hotel NY
Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process . . . in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP)).
Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have effected service until the Court reviewed the amended complaint and ordered that the summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons issues.
To allow Plaintiff to effect service on Defendant Ace Hotel NY through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form (USM-285 form) for Defendant. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all of the paperwork necessary for the Marshals Service to effect service upon Defendant.
If the amended complaint is not served within 90 days after the date the summons is issued, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff's responsibility to request an extension of time for service).
Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.
B. Pro Bono Counsel
Plaintiff has filed an application for the Court to seek pro bono counsel. (ECF 5.) The factors to be considered in ruling on an indigent litigant's request for counsel include the merits of the case, Plaintiff's efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. See Cooper v A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which command[s] the most attention.” Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff's motion for counsel is denied without prejudice to renewal at a later date.
CONCLUSION
Plaintiff's request for pro bono counsel (ECF 5) is denied without prejudice to renewal. The Clerk of Court is directed to mail an information package to Plaintiff.
The Clerk of Court is further instructed to complete the USM-285 form with the address for Defendant Ace Hotel NY and deliver to the U.S. Marshals Service all documents necessary to effect service.
Plaintiff may agree to accept service of court documents by email, instead of regular mail, by completing the attached form, Consent to Electronic Service.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.