noting that failure to comply with timing requirement of Rule 4 (m) was attributable to trial court’s nonperformance of its obligations
How later courts described this case
- noting that failure to comply with timing requirement of Rule 4 (m) was attributable to trial court’s nonperformance of its obligations
- “[F]or the trial court to have relied on those facts outside the complaint, without notifying Herbin that it intended to do so and giving him an opportunity to present additional material relevant to a summary judgment motion, is reversible error.”
- “for the trial court to have relied on ... facts [not appearing in the com plaint], without notifying Herbin that it intended to do so and giving him an opportunity to present additional material relevant to a summary judgment motion, is reversible error”
Written by the judges who cited it.
The opinion
SCHWELB, Associate Judge,
concurring:
In their supplemental brief filed in response to an order of this court soliciting the parties’ positions on the impact of Super. Ct. Civ. R. 54-11, counsel for Ms. Hoeffel have “concede[d] that Herbin’s request to have the U.S. Marshals Service (USMS) effect service should have been granted.” Ms. Hoeffel’s attorneys have not raised the question whether, before ordering USMS to serve the complaint on Ms. Hoeffel, the trial judge was obligated to “screen the case to determine if it is frivolous or malicious [or] fails to state a claim _” 1 James W. Moore, Mooee’s Federal Practice, § 4.41, at 4-56.5 (3d ed.1999) (discussing procedure under related federal statute). Counsel likewise have not argued that Herbin will ultimately be obliged to compensate USMS from his prison income. Id. § 4.40, at 4-54. These issues not having been raised, we cannot and do not decide them. 1
With this understanding, I join the judgment and opinion of the court.
. We are not here presented, for example, with a frivolous complaint against a large number of defendants, accompanied by a demand that all of these defendants be served at taxpayer expense.