Thornton v. Able

Full title: MUHAMID THORNTON, Plaintiff, v. PAUL ABLE, individually and in his…

Court: United States District Court, W.D. Pennsylvania

Date published: May 22, 2009

02: 09-cv-0246 (W.D. Pa. May. 22, 2009)

Opinion

02: 09-cv-0246.

May 22, 2009

ORDER OF COURT

TERRENCE McVERRY, District Judge

Plaintiff, Muhamid Thornton, pro se, has filed a MOTION FOR SERVICE BY U.S. MARSHAL in which he seeks to have the Defendant Paul Able served with process by the U.S. Marshal. On March 2, 2009, the Court granted Plaintiff leave to proceed in forma pauperis. Therefore, pursuant to Federal Rule of Civil Procedure 4(c), the instant Motion is GRANTED. IT IS HEREBY ORDERED that Plaintiff shall complete and submit a USM-285 form (Process Receipt and Return), which is attached, to the Clerk of Court on or before June 5, 2009. Plaintiff is advised that service will not be made on Defendant Able until the properly completed USM-285 form has been returned to the Clerk of Court.

Plaintiff shall also complete and submit a Form 1A (Notice of Lawsuit and Request for Waiver of Service of Summons) which is also attached, to the Clerk of Court on or before June 5, 2009.

The Clerk of Court shall then forward the forms submitted by the Plaintiff, a Form 1B (Waiver of Service of Summons), the Amended Complaint, and a copy of this Order of Court to the United States Marshal for service upon Defendant Able.

The United States Marshal is DIRECTED, pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure, to serve process on Defendant Able in the manner specified in Rule 4(d)(1) of the Federal Rules of Civil Procedure. Process in this case shall consist of the Amended Complaint, Forms 1A and 1B, and this Order of Court. For purposes of computing the passage of time under Rule 4(d)(3), the Court and all parties will compute time as of the date it is mailed by the Marshal, as noted on the USM-285 form. All costs of service made in this manner shall be borne by the government.

The United States Marshal shall file the returned waiver of service, or if applicable, the request for waiver of service that is returned as undelivered, as soon as it received. If a waiver of service is not returned by Defendant Able within THIRTY (30) DAYS from the date of mailing the request for waiver, the United States Marshal shall:

(i) Request that the Clerk of Court prepare a summons for Defendant Able; the Clerk of Court shall then prepare such summons as requested;

(ii) Personally serve process upon Defendant Able pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c);

(iii) Within ten (10) days after personal service is effected, the United States Marshal shall file the return of service for Defendant Able, along with evidence of any attempts to secure a waiver of service of process and of the costs subsequently incurred in effecting service on Defendant Able. Said costs shall be enumerated on the USM-285 form and shall include the costs incurred by the Marshal's office for photocopying additional copies of the summons and amended complaint and for preparing new USM-285 forms, if required. Costs of service will be taxed against Defendant Able in accordance with the provisions of Federal Rule of Civil Procedure 4(d)(2), unless Defendant Able shows good cause for such failure.

So ORDERED.

Exhibit

INSTRUCTIONS FOR SERVICE OF PROCESS BY U.S. MARSHAL

Please type or print legibly, insuring readability of all copies. DO NOT DETACH ANY COPIES. Submit one complete set of this form (USM-285) and one copy of each writ for each individual, company, corporation, etc., to be served or property to be seized or condemned. The applicable fees for such service(s) (T28, USC Sec. 1921 establishes the fees for service of process by the U.S. Marshal) may be required prior to said service.

For service of any process upon an officer or agent of the United States Government, submit a copy of the writ and a set of Form USM-285 for each officer or agent upon whom service is desired. Submit three (3) additional copies of the writs for service upon the Government of the United States. The U.S. Marshal will serve one (1) upon the U.S. Attorney and will forward two (2) to the Attorney General of the United States. (When the applicable box is checked, completion of the final signature block by the U.S. Marshal or his Deputy always certifies service on the U.S. Attorney and the Attorney General, regardless of whether other defendants on the writ were served.) Failure to provide any of the copies will delay service of the writ.

Complete all entries above the double line. Mark all applicable check boxes and use the "Special Instructions" to advise of any information that will assist the U.S. Marshal in expediting service.

If more than one writ and USM-285 is submitted on a single case, the U.S. Marshal will receipt for all of them on the first USM-285. You will receive for your records the last (No. 5) "Acknowledgment of Receipt" copy for all the USM-285 forms you submit. When the writ is served, you will receive the No. 3 Notice of Service copy. This copy will be identical to the return to the Clerk of the Court.

Upon completion of all services (if the Marshals fees were not requested or tendered in advance or if additional fees are indicated), you will receive a "Billing Statement" (copy 4 of USM-285) from the United States Marshal. (NOTE: Copy 4 should be returned, by you, to the U.S. Marshal, together with your payment of the amount owed.

Additional supplies of the USM-285 may be obtained from the Clerk of the U.S. District Court or U.S. Marshal, without cost.

AO 389 (12/93) Notice of Lawsuit and Request for Waiver of Service of Summons

FORM 1A TO: ___________________________________________________________________________________________________ (Name of individual defendant or name of officer or agent of corporate defendant) (as ___________________________________________________________ of _________________________________________________) (Title or relationship of individual to corporate defendant) (Name of corporate defendant, if any) A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A copy of the complaint is attached to this notice. It has been filed in the United States District Court for the Western District of Pennsylvania and has been assigned docket number _____________________________.

This is not a formal summons or notification from the court, but rather my request that you sign and return the enclosed waiver of service in order to save the cost of serving you with a judicial summons and an additional copy of the complaint. The cost of service will be avoided if I receive a signed copy of the waiver within ______________^_ days after the date designated below as the date on which this Notice and Request is sent. I enclose a stamped and addressed envelope (or other means of cost-free return) for your use. An extra copy of the waiver is also attached for your records.

_ Addressee must be given at least 30 days (60 days if located in foreign country) in which to return waiver

If you comply with this request and return the signed waiver, it will be filed with the court and no summons will be served on you. The action will then proceed as if you had been served on the date the waiver is filed, except that you will not be obligated to answer the complaint before 60 days from the date designated below as the date on which this notice is sent (or before 90 days from that date if your address is not in any judicial district of the United States).

If you do not return the signed waiver within the time indicated, I will take appropriate steps to effect formal service in a manner authorized by the Federal Rules of Civil Procedure and will then, to the extent authorized by those Rules, ask the court to require you (or the party on whose behalf you are addressed) to pay the full costs of such service. In that connection, please read the statement concerning the duty of parties to waive the service of the summons, which is set forth at the foot of the waiver form.

I affirm that this request is being sent to you on behalf of the plaintiff, this ______________ day of ___________________, ______________. AO 399 (12/93) WAIVER OF SERVICE OF SUMMONS

_________________________________________________ Signature of Plaintiff's Attorney or Unrepresented Plaintiff FORM 1B TO: ________________________________________________________________ I acknowledge receipt of your request that I waive service of a summons in the action of ____________________________________________, which is case number ______________ in the United States District Court for the Western District of Pennsylvania. I have also received a copy of the complaint in the action, two copies of this instrument, and a means by which I can return the signed waiver to you without cost to me.

I agree to save the cost of service of a summons and an additional copy of the complaint in this lawsuit by not requiring that I (or the entity on whose behalf I am acting) be served with judicial process in the manner provided by Rule 4.

I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or to the jurisdiction or venue of the court except for objections based on a defect in the summons or in the service of the summons.

I understand that a judgment may be entered against me (or the party on whose behalf I am acting) if an answer or motion under Rule 12 is not served upon you within 60 days after ________________________ or within 90 days after that date if the request was sent outside the (Date Request was sent) United States.

________________________ __________________________________ Date Signature Printed/typed name: __________________________________ (as ____________________________________________) (of ____________________________________________)

Duty to Avoid Unnecessary Costs of Service of Summons

Rule 4 of the Federal Rules of Civil Procedure requires certain parties to cooperate in saving unnecessary costs of service of the summons and complaint. A defendant located in the United States, who, after being notified of an action and asked by a plaintiff located in the United States to waive service of a summons, fails to do so will be required to bear the cost of such service unless good cause be shown for its failure to sign and return the waiver. It is not good cause for a failure to waive service that a party believe that the complaint is unfounded, or that the action has been brought in an improper place or in a court that lacks jurisdiction over the subject matter of the action or over its person or property. A party who waives service of the summons retains all defenses and objections (except any relating to the summons or to the service of the summons), and may later object to the jurisdiction of the court or to the place where the action has been brought. A defendant who waives service must within the time specified on the waiver form serve on the plaintiffs attorney (or unrepresented plaintiff) a response to the complaint and must also file a signed copy of the response with the court. If the answer or motion is not served within this time, a default judgment may be taken against that defendant. By waiving service, a defendant is allowed more time to answer than if the summons had been actually served when the request for waiver of service was received.