Opinion
CASE NO. 4:10-cv-474-SPM-GRJ
09-26-2011
HARRY MICHAEL WRIGHT, Plaintiff, v. MORRIS YOUNG, et al., Defendants.
ORDER
Before the Court is Plaintiff's Request To The Clerk Of Court For Service Of Process Pursuant To Rule 4(c)(3). (Doc. 14.) Pursuant to this Court's September 9, 2011 order (Doc. 13), the Plaintiff provided the Clerk of Court with completed summons forms, waiver of service forms and service copies of the Amended Complaint for each Defendant. In his motion, Plaintiff asks the Court to direct the United States Marshal to serve the Defendants on Plaintiff's behalf pursuant to Fed. R. Civ. P. 4(c)(3).
Plaintiff paid the full filing fee when he initiated this lawsuit and, because he is not proceeding in forma pauperis, he is responsible for serving the First Amended Complaint upon each Defendant.
Pursuant to Fed. R. Civ. P. 4(c)(3), "[a]t the Plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court." Before a federal court may order appointment of the United States Marshal to effect service of process on behalf of a plaintiff who has paid the filing fee, however, the plaintiff must first attempt to complete service of process on his own. See, e.g., Bax v. Executive Office for U.S. Attorneys, 216 F.R.D. 4, 4 (D.D.C. 2003)(noting "courts have held that a plaintiff requesting service by the United States Marshal first must attempt service by some other means authorized by Rule 4"); Jones v. Goodman, No. 91-7560, 1992 WL 18556324, at *1 (E.D. Pa. July 21, 1992)("Plaintiff appears to believe that service by a United States marshal is made available to litigants upon request. Quite the contrary, Fed.R.Civ.P. 4(c)(2)(B)(iii) [precursor to the current Rule 4(c)(3)] indicates that a court may issue an order instructing service by a marshal only if required to properly effect service in an action....Consequently, before this court invokes the resources of the government to effect service of process in this matter, plaintiff must first exert some effort to complete service pursuant to Rule 4(c)(2)(C).").
Plaintiff's motion does not demonstrate any prior efforts by Plaintiff to serve the Defendants in accordance with Rule 4. Accordingly, Plaintiff's motion will be DENIED without prejudice to Plaintiff's right to refile the motion in the event his attempts to serve the Defendants prove unsuccessful.
Accordingly, it is hereby ORDERED:
1. Plaintiff's Request To The Clerk Of Court For Service Of Process Pursuant To Rule 4(c)(3) (Doc. 14) is DENIED without prejudice to Plaintiff's right to refile the motion in the event his attempts to serve the Defendants prove unsuccessful.
2. The Clerk of Court is directed to issue the summonses, and send the summonses, the service copies of the First Amended Complaint (Doc. 9), and the prepared waiver of service forms back to the Plaintiff.
3. Plaintiff shall serve a copy of the First Amended Complaint and summons
and a waiver of service form upon each named Defendant in accordance with Rule 4.
DONE AND ORDERED this 26th day of September, 2011.
GARY R. JONES
United States Magistrate Judge