holding that it is the plaintiff’s responsibility to request an extension of time for service
How later courts described this case
- holding that it is the plaintiff’s responsibility to request an extension of time for service
- “As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals’ failure to effect service automatically constitutes ‘good cause’ for an extension of time within the meaning of Rule 4(m).”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DORA BROWN,
Plaintiff,
19 Civ. 6328 (KPF)
-v.-
ORDER OF SERVICE
AUTOMATTIC; BLUEHOST; and
TWITTER,
Defendants.
KATHERINE POLK FAILLA, District Judge:
Plaintiff, appearing pro se, brings this action invoking the Court’s federal
question and diversity jurisdiction and alleging that Defendants committed
breach of contract, fraud, and other state-law claims. By Order dated
August 21, 2019, the Court granted Plaintiff’s request to proceed without
prepayment of fees, that is, in forma pauperis.
Because Plaintiff has been granted permission to proceed IFP, she 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 the summons and
complaint be served within 90 days of the date the complaint is filed, Plaintiff is
proceeding IFP and could not have served the summons and complaint until
the Court reviewed the complaint and ordered that a summons be issued.
Moreover, the Court recognizes that its prior Order of Service contained
incorrect addresses for Defendants, through no fault of Plaintiff. (Dkt. #8).
The Court therefore extends the time to serve until 90 days after the date the
new summons is issued. If the complaint is not served within that time,
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); see also Murray v. Pataki, 378 F.
App’x 50, 52 (2d Cir. 2010) (“As long as the [plaintiff proceeding IFP] provides
the information necessary to identify the defendant, the Marshals’ failure to
effect service automatically constitutes ‘good cause’ for an extension of time
within the meaning of Rule 4(m).”).
To allow Plaintiff to effect service on Defendants Automattic Inc.,
Bluehost, and Twitter 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 each of these defendants. The Clerk of Court is further
instructed to issue a summons and deliver to the Marshals Service all the
paperwork necessary for the Marshals Service to effect service upon these
defendants.
Plaintiff must notify the Court in writing if her address changes, and the
Court may dismiss the action if Plaintiff fails to do so.
CONCLUSION
The Clerk of Court is directed to mail a copy of this Order to Plaintiff,
together with an information package.
The Clerk of Court is further instructed to complete the USM-285 forms
with the addresses for Automattic Inc., Bluehost, and Twitter and deliver all
documents necessary to effect service to the U.S. Marshals Service.
SO ORDERED.
Dated: February 6, 2020 ]
New York, New York Kathe Mal. fild-
KATHERINE POLK FAILLA
United States District Judge
DEFENDANTS AND SERVICE ADDRESSES
Automattic, Inc.
c/o Mindy Morton
Procopio, Cory, Hargreaves & Savitch LLP
1117 S California Ave, Suite 200
Palo Alto, CA 94303
Bluehost
Attn: Legal Department
1500 N Priest Drive, Suite 200
Tempe, AZ 85281
Twitter, Inc.
1355 Market Street
San Francisco, CA 94103