Opinion
Civ. File No. 04-2912 (PAM/JGL).
December 1, 2004
MEMORANDUM AND ORDER
This Court previously ordered Plaintiff to properly serve Defendants with a Summons and the Complaint in this action by September 30, 2004. Because Plaintiff has failed to do so, the Court dismisses this action without prejudice.
BACKGROUND
Plaintiff commenced this action on June 8, 2004. However, he did not properly serve any Defendants with the Summons and Complaint. Instead, he mailed a copy of the Complaint to Defendants Tim Pawlenty, Michael Hatch, and Joan Fabian via certified mail. Nevertheless, Plaintiff moved for default judgment against all Defendants on August 6, 2004. The Court denied Plaintiff's motion on September 7, 2004. In its Order, the Court specifically instructed Plaintiff to comply with the Federal Rules of Civil Procedure when serving Defendants. The Court also acknowledged that the time limit under Rule 4(m) was soon to expire, and therefore allowed Plaintiff until September 30, 2004, to effectuate proper service. (See September 7, 2004, Order at 2.)
On August 26, 2004, Plaintiff also filed Motions for U.S. Marshal Forms and for U.S. Marshal Service on Defendants. Because Plaintiff neither filed for nor was granted in forma pauperis status under 28 U.S.C. § 1915, the Court denied his request and instructed Plaintiff that he was responsible for serving the Summons and Complaint. (See September 7, 2004, Order.)
On October 1, 2004, Plaintiff filed six certified mail return postcards: two to Defendant Pawlenty (dated May 21, 2004, and June 7, 2004), two to Defendant Hatch (dated June 7, 2004, and September 22, 2004), and two to Defendant Fabian (dated June 7, 2004 and September 22, 2004). The Court Docket does not indicate that Plaintiff attempted service on any other Defendant. In addition, there is no indication that Plaintiff requested that any Defendant waive service of the Summons. As such, no Defendant has made an entry of appearance in this action.
DISCUSSION
A. Ineffective Service
A plaintiff commencing an action in the United States District Court for the District of Minnesota may effectively serve a summons and complaint by two methods: either through personal service or through mail service with acknowledgment. See Fed.R.Civ.P. 4(e) (service upon an individual may be effected pursuant to Minnesota law or through personal service); Minn. R. Civ. P. 4.03 (personal service); Minn. R. Civ. P. 4.05 (acknowledged mail service); Medalen v. Tiger Drylac U.S.A., Inc., 269 F. Supp. 2d 1118, 1124 (D. Minn. 2003) (Erickson, Magistrate J.) (citations omitted).
Defendant seemingly attempted to effectuate service via mail. However, he did not comply with Minnesota Rule of Civil Procedure 4.05, which states:
In any action service may be made by mailing a copy of the summons and of the complaint (by first class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming to Form 22 and a return envelope, postage prepaid, addressed to the sender. If acknowledgment of service under this rule is not received by the sender within the time defendant is required by these rules to serve an answer, service shall be ineffectual.
There is no indication that Plaintiff mailed any Defendant a notice and acknowledgment of service, or a return envelope addressed to Plaintiff. In any event, no Defendant has returned an acknowledgment of service to Plaintiff. Consequently, Plaintiff's attempt to serve Defendants Pawlenty, Hatch, and Fabian via certified mail is ineffective.
B. Dismissal
Federal Rule of Civil Procedure 4(m) states:
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.
"A district court has the power to dismiss a case for failure to comply with its rules." Marshall v. Warwick, 155 F.3d 1027, 1030 (8th Cir. 1998). Thus, the Court may sua sponte dismiss an action for ineffective service. Norsyn, Inc. v. R.M. Desai, 351 F.3d 825, 830 (8th Cir. 2003).
The Court is cognizant that it should "take care to protect pro se plaintiffs from consequences of confusion." Fed.R.Civ.P. 4(m) cmt. (1993). Accordingly, in its September 7, 2004, Order, the Court gave Plaintiff ample notice of his defective service. In addition, although Plaintiff had not shown good cause for the defective service, the Court provided Plaintiff additional time to properly serve Defendants. Nevertheless, Plaintiff did not attempt to correct his error, but merely attempted to serve Defendants in the same manner as before. Because Plaintiff has failed to properly serve any Defendant in this action, the Court dismisses this action pursuant to Federal Rule of Civil Procedure Rule 4(m). See Bullock v. United States, 160 F.3d 441, 441 (8th Cir. 1999) (affirming sua sponte dismissal when pro se plaintiffs failed to properly serve defendants).
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that this action is DISMISSED without prejudice. If Plaintiff chooses to commence this action again, he should file his complaint with the Clerk of Court, obtain a Summons signed by the Clerk and under seal of the Court, and ensure that a Summons and a copy of the Complaint are served upon each Defendant in compliance with Rule 4.
LET JUDGMENT BE ENTERED ACCORDINGLY