Thornton v. Able

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

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

Date published: Oct 29, 2009

02: 09-cv-0246 (W.D. Pa. Oct. 29, 2009)

Opinion

02: 09-cv-0246.

October 29, 2009

ORDER OF COURT

TERRENCE McVERRY, District Judge

On October 14, 2009, the Court issued an ORDER TO SHOW CAUSE as to why the amended complaint should not be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m) as to Defendants Lori Dobrosielski, City of Pittsburgh, Allegheny County Sheriffs Department, City of Pittsburgh Police Chief Nate Harper, City of Pittsburgh Police Department, and Renee Racsuta.

On October 27, 2009, Plaintiff, pro se, filed his Response to the Order to Show Cause in which he contends that the "clerk for the court failed to docket into the record the individual request for Marshals service of the Amended Complaint and summons, upon the above named defendants."

In order for "officers of the court" to "issue and serve all process" upon a defendant(s), certain forms must first be completed by the plaintiff and returned to the Clerk of Courts. See 28 U.S.C. § 1915(d). These forms include a Notice of Lawsuit and Request for Waiver of Service of Summons (Form AO 389-Form 1A), a Waiver of Service of Summons (Form AO 399 — Form 1B), Summons (Form AO 440), and Process Receipt and Return (Form USM-285). See Federal Rule of Civil Procedure 4.

Upon investigation, the Court has determined that Plaintiff never provided the Court or Clerk of Courts with the completed forms so that arrangements could be made for service on any of the named defendants. It appears from Plaintiff's initial filings that he had received certain pre-printed forms from the United States District Court, Northern Ohio. See Document No. 1-3.

On March 2, 2009, the Court granted Plaintiff's Motion for Leave to Proceed In Forma Pauperis. On that same day, in accordance with Rule 4(b), the Clerk's office "signed, sealed and issued" Summons for each Defendant to be served and mailed same back to Plaintiff. The Summons had previously been provided to the Clerk's office by Plaintiff; however, Plaintiff never provided the Clerk's office with any of the other necessary forms needed for service.

Further, Plaintiff never indicated or requested that the Clerk of Courts make the necessary arrangements for service on any defendant. If Plaintiff had desired for "officers of the court" to serve the defendants, it was necessary that Plaintiff complete the above referenced forms for each defendant he wished served and then provide a completed packet to the Clerk's office. Significantly, Plaintiff never provided the Clerk of Courts with all the necessary and completed forms for service.

However, on May 18, 2009, Plaintiff filed a Motion for Service by U.S. Marshal in which he stated that he had "attempted to serve the Defendant Paul Able, with the complaint by personal service as well as by Certified Mail, but service has been evaded/and or refused." In the Motion, Plaintiff made no mention of the other named Defendants, and significantly, did not request that service be made upon these parties by the U.S. Marshal. In response to the motion, the Court sent Plaintiff a USM-285 Form and a Form 1A (Notice of Lawsuit and Request for Waiver of Service of Summons), and instructed Plaintiff to complete the forms for Defendant Able. The Court advised Plaintiff that service would not be made on Defendant Able until the properly completed USM-285 and Form 1A forms had been returned to the Clerk of Court.

Plaintiff completed the packet as to Defendant Able only and the Court forwarded same to the U.S. Marshal for service in accordance with Rule 4(c)(3) of the Federal Rules of Civil Procedure.

On July 20, 2009, the U.S. Marshal filed a Notice of Inability to Effectuate Service on Defendant Able via United States Postal Service. The following day, July 21, 2009, the Court issued an Order in which it directed that the Clerk of Court prepare duplicate Summons and Amended Complaint for Defendant Able and ordered that the U.S. Marshal make personal service of those documents upon the named Defendant. On that same day, a copy of the Summons and Amended Complaint was hand delivered to the U.S. Marshal for personal service upon Defendant Able.

In accordance with Rule 4, the U.S. Marshal has 120 days in which to effectuate service on Defendant Able. To date, no return of service has been filed.

The Court takes judicial notice that Plaintiff Thornton has called Chambers on numerous occasions inquiring into the status of service on Defendant Able. He has never inquired into the status of service on the other remaining eight (8) defendants. If Plaintiff desires the clerk's office to effectuate service on the remaining eight (8) defendants, it remains incumbent upon the Plaintiff to provide the Clerk of Courts with a completed packet for each defendant he wishes to have served.

In an abundance of caution, and to confirm that all applicable statutes and rules have been followed, attached to this Order are the following forms: a Notice of Lawsuit and Request for Waiver of Service of Summons (Form AO 389 — Form 1A), a Waiver of Service of Summons (Form AO 399 — Form 1B), Summons (Form AO 440), and Process Receipt and Return (Form USM-285). Plaintiff is to make copies of the forms and return a completed packet to the Clerk of Courts for each defendant he desires to have served. Plaintiff is advised that service will not be made until a completed packet has been returned to the Clerk of Courts. Once the completed packets are received, the Court will appoint the U.S. Marshal to effect service in accordance with Federal Rule of Civil Procedure 4(c)(3).

Plaintiff shall complete and submit the packet(s) to the Clerk of Courts on or before November 16, 2009. If said completed packet(s) are not received by November 16, 2009, the Court will dismiss without prejudice any Defendant not served for lack of prosecution, with the exception of Allegheny County which has waived service.

So ORDERED.

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.

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 __________________________, __________________.

_______________________________________________ Signature of Plaintiff's Attorney or Unrepresented Plaintiff *Addressee must be given at least 30 days (60 days if located in foreign country) in which to return waiver 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 ___________________________________ (Date Request was sent) or within 90 days after that date if the request was sent outside the 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.