pending motion for Marshal Service did not relieve a plaintiff from accomplishing service through other authorized means where the "[p]laintiff was on notice that service had to be effectuated again upon the Court quashing service."
How later courts described this case
- pending motion for Marshal Service did not relieve a plaintiff from accomplishing service through other authorized means where the "[p]laintiff was on notice that service had to be effectuated again upon the Court quashing service."
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KOKO JOHNSON, )
)
Plaintiff, )
)
v. ) 2:24cv291
) Electronic Filing
SERENA WILLIAMS and ALEXIS )
OHANIAN, )
)
Defendants. )
MEMORANDUM OPINION
Koko Johnson ("plaintiff") commenced this proceeding by filing a motion to proceed in
forma pauperis. The motion listed plaintiff's wages as "0" and indicated he had no other forms
of income or financial support. It also failed to identify any assets or expenses, dependents or
debts or financial obligations. Affidavit (Doc. No. 1). All of this was sworn under penalty of
perjury. Id.
Plaintiff attached to his motion a “complaint” seeking to establish a "7 million dollar
lawsuit" against Serena Williams and Alexis Ohanian for damages to plaintiff's "character and
[reputation]" as a consequence of "Serena Williams' claim of allegedly RIP." Plaintiff demands
that she "come here back to show me where are RIP her at." Plaintiff's Complaint (Doc. No. 1-1
and 4 at p. 4.
Defendant Serena Williams is identified as an "American Internet entrepreneur" and
"Professions Tennis Player" with an address of "the Los Angeles Country Club, 10101 Wilshire
Blvd." Id. at p. 2. Defendant Alexis Ohanian also is an "American Internet entrepreneur" with
the same address. Id. Serena Williams assertedly is a citizen of Miami, Florida. Id. at p. 3.
After filing the complaint but before a ruling was made on plaintiff's motion to proceed in
forma pauperis, plaintiff filed a motion for a trial date. Doc. No. 2. In this motion plaintiff
demands:
Williams must come here back to [show] me were Ohanian and police officer. Same
District Judge conspiring to invade home, rape my wife, took child from her side. [And]
Williams did not stop there. [While] working Williams instructed one of staff to video
record where changing clothes.
Id.
After the court did not take action on plaintiff's motion to proceed in forma pauperis for
five months, plaintiff paid the $400.00 filing fee on August 19, 2024. The Clerk of Court then
filed plaintiff's complaint. Ten days later plaintiff filed a "motion for service," which contains
only the notation of "Marshal Service." Doc. No. 5. To resolve this motion the court will
examine whether plaintiff would have been entitled to service of the complaint pursuant to his
motion to proceed in forma pauperis or any other way/source of authority.
The United States Court of Appeals for the Third Circuit has instructed the district courts
to utilize a two-step analysis to determine whether to direct service of a complaint where the
plaintiff seeks to proceed in forma pauperis. First, the court must determine whether the litigant
is indigent within the meaning of 28 U.S.C. § 1915(a). Second, the court must determine
whether the complaint is frivolous or malicious under 28 U.S.C. § 1915(d).1 Roman v. Jeffes,
904 F.2d 192, 194 n.1 (3d Cir. 1990). Plaintiff's financial affidavit does not identify any source
of income or assets. Thus, if plaintiff had not paid the filing fee, the court would have found
plaintiff to be without sufficient funds to pay the required filing fee. Thus, he would have been
granted leave to proceed in forma pauperis.
1 This provision is now codified at §1915(e)(2)(B)(i).
2
In Neitzke v. Williams, 490 U.S. 319 (1989), the Supreme Court identified two types of
legally frivolous complaints: (1) those based upon indisputably meritless legal theory, and (2)
those with factual contentions which clearly are baseless. Id. at 327. An example of the first is
where a defendant enjoys immunity from suit, and an example of the second is a claim
describing a factual scenario which is fanciful or delusional. Id. In addition, Congress has
expanded the scope of § 1915 to require that the court be satisfied that the complaint states a
claim upon which relief can be granted before it directs service; if it does not, the action shall be
dismissed. 28 U.S.C. § 1915(e)(2)(B)(ii).
A review of plaintiff's "complaint" reveals that it fails to state a claim upon which relief
can be granted. It is based on both indisputably meritless legal theory and factual contentions
which are at the very least fanciful. The complaint is devoid of any sound basis to infer or
assume that any of the named defendants committed an actionable wrong against plaintiff.
It follows that the complaint is grounded in indisputably meritless legal theory and is
otherwise fanciful. Accordingly, plaintiff would not have been entitled to have the Marshal
Service serve the defendants.2
Given that plaintiff is not entitled to obtain service of process under the in forma pauperis
statute, the court will examine the other tenants of law governing the ability of plaintiff to obtain
and/or effectuate service of process. "At one time, all process in federal civil litigation was
served by the United States Marshals Service." Tejada v. DelBalso, 2018 WL 6268202, *1
(M.D. Pa. Nov. 30, 2018) (citing FROF, Inc. v. Harris, 695 F. Supp. 827, 828–29 (E.D. Pa.
2 In addition to these substantive deficiencies, plaintiff's submissions indicate that defendants are
not amenable to service of process in Pennsylvania. In this regard the submissions strongly
suggest that defendants are not subject to personal jurisdiction in the Western District of
Pennsylvania.
3
1988)). But in 1983, Rule 4 was amended to permit service of a summons and complaint by
“[a]ny person who is at least 18 years old and not a party” to the litigation. See Fed. R. Civ. P.
4(c)(2); FROF, 695 F. Supp. at 829. This change was designed “to reduce the burden on the
United States Marshal[s] Service of serving civil process in private litigation, without
endangering the effective and efficient service of civil process.” Tejada, 2018 WL 6268202 at
*2 (citing Changes in Federal Summons Service Under Amended Rule 4 of the Federal Rules of
Civil Procedure, 96 F.R.D. 81, 127 (1983) (advisory committee note to proposed Rule 4(c)). As
a result, it "is now the plaintiff who 'is responsible for having the summons and complaint served
within the time allowed by Rule 4(m) and [who] must furnish the necessary copies to the person
who makes service.'" Id. (quoting Fed. R. Civ. P. 4(c)(1)).
Today, Rule 4 contains two exceptions under which the United States Marshals Service
must effectuate service of process in a civil case. First, service by the United States Marshal
Service is mandatory in in forma pauperis and seamen's suits. Fed. R. Civ. P. 4(c)(3); see also
28 U.S.C. § 1915(d); 28 U.S.C. § 1916. Second, at a plaintiff's request, service by a United
States Marshal Service or some other person specially appointed by the Court may be ordered at
the court's discretion. Fed. R. Civ. P. 4(c)(3); see also Tejada, 2018 WL 6268202 at *2; Koger v.
Bryan, 523 F.3d 789, 803 (7th Cir. 2008).
Here, neither of the exceptions is applicable. First, plaintiff is not proceeding in forma
pauperis. He paid the filing fee. And even assuming that this could be overlooked and the court
were to revert to plaintiff's original motion to proceed in forma pauperis, the above assessment
of plaintiff's complaint makes clear that service of process by the Marshal Service under this
exception would not have occurred because plaintiff's complaint fails to state a claim upon which
relief can be granted.
4
This leaves for consideration whether the court should exercise its discretion to order
service of process. The history of Rule 4 reflects the studied assessment and determination to
relieve the Marshal Service of the burdens of serving process in a civil case. Jackson v. Wray,
2023 WL 7115177, *1 (N.D. Tx. Oct. 27, 2023) (quoting Lovelace v. Acme Mkts., Inc., 820
F.2d 81, 83 (3d Cir.1987) (quoting 128 Cong. Rec. H9848–49 (daily ed. Dec. 15, 1982) and
citing Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir.1991) (noting that the legislative history
of Rule 4 shows congressional intent “to relieve the marshal of the duty of routine[ ] servi[ce]” in
private civil actions)). "Accordingly, 'the plaintiff is expected first to seek service by private
means whenever feasible rather than impose the burden on the [USM]”, and courts should not
order service by the USM unless really necessary.'" Id. (citing Advisory Committee Note, 93
F.R.D. 255, at 262, 128 Cong. Rec. H9848 to 9855, 96 F.R.D. 81, 127). Consistent with
congressional intent and the committee note, lower courts have denied requests for service by the
Marshal Service where a plaintiff fails to present evidence that service was first attempted
through the other means authorized by Rule 4 before seeking an order for service from the court.
Id. (collecting cases).
Plaintiff has made no effort whatsoever to effectuate personal service of process on
defendants. Given that plaintiff has failed to show that other means authorized by Rule 4 have
proved ineffective, the court lacks a sound basis to exercise its discretion to order service by the
Marshal Service. Consequently, to the extent such a request is implicitly raised in plaintiff's
pending motions, it will be denied.
Finally, it is apparent that plaintiff has failed to comply with Rule 4(m). Rule 4(m)
provides:
(m) Time Limit for Service. If a defendant is not served within 90 days after the
complaint is filed, the court--on motion or on its own after notice to the plaintiff--must
5
dismiss the action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). This Rule requires that "a defendant be served within ninety days after the
complaint is filed or seek an extension of time from the court." Arkansas United v. Thurston,
517 F. Supp.3d 777, 783 (W.D. Ark. 2021).
Plaintiff has not served the defendants within ninety days of filing the complaint. Thus,
the court must either dismiss the action or order that service be made within a specified time.
The court will exercise its discretion and give plaintiff an additional thirty days to serve
the defendants in a manor authorized by Rule 4. Two aspects of the record support this
extension. First, plaintiff initially filed his complaint with a motion to proceed in forma pauperis
and a plaintiff may in good faith await on a ruling on such a motion before having the obligation
to effectuate service. Junco v. Advocate Aurora Health, 646 F. Supp.3d 978, 986 (E.D. Wis.
2022). Second, plaintiff filed a motion to have the Marshal Service serve defendants when he
paid the filing fee, and that motion has remained pending. The court will give plaintiff the
benefit of the doubt and assume he did not clearly understand his unflagging obligation to
effectuate service in compliance with Rule 4. Cf. Roig v. Chanris, Inc., 117 F.R.D. 324 (D.
Puerto Rico 1987) (pending motion for Marshal Service did not relieve a plaintiff from
accomplishing service through other authorized means where the "[p]laintiff was on notice that
service had to be effectuated again upon the Court quashing service.").
For the reasons set forth above, plaintiff's motion to proceed in forma pauperis will be
denied as moot; his motion for service of process by the Marshal Service will be denied for
failure to show that other efforts to effectuate service have proven ineffective; and the court will
6
grant plaintiff an additional thirty days to comply with Rule 4(m).3 An appropriate order will
follow.
s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge
cc: Koko Johnson - pro se
129 Redlyn St.
Pittsburgh, PA 15210
(Via United States Mail)
3 Of course, the failure to effectuate service as required under Rule 4 within that 30 days will
result in the dismissal of this action pursuant to Rule 4(m).
7