Atwood #062887 v. Days et al
ORDER (Service Packet) - Plaintiff's First Amended Complaint lodged at Doc. 23 must be filed as of the date that it was lodged. Plaintiff's motion to supplement the Complaint (Doc. 22 ) is denied. Plaintiff's motion for a prelim inary injunction (Doc. 3 ) is denied in part.The motion is denied except as to grab bars in the visitation area(s) used by Plaintiff and in holding cells, and associated toilet facilities. No later than 10 days from the filing date of this Order, Defendants must file a sur-reply to Plaintiff's reply in support of his motion for injunctive relief as discussed herein. Counts II and III are dismissed without prejudice. Defendants Wallis and Romney are dismissed without prejudice. Defend ants Centurion, Olmstead, Lopez, Days, and Arnold must answer Count I, as set forth herein, and Defendants Shinn and Scott must answer Count IV. The Clerk of Court must send Plaintiff a service packet, this Order, and both summons and request for w aiver forms for the unserved Defendants Centurion, Olmstead, Lopez, and Scott. Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. If Plaintiff does not either obtain a wa iver of service of the summons or complete service of the Summons and First Amended Complaint on any unserved Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may b e dismissed as to each Defendant not served. Any answer or response must state the specific Defendant by name on whose behalf it is filed. This matter is referred to Magistrate Judge John Z. Boyle, including Plaintiff's motion to compel (Doc. 32 ), pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). The Clerk of Court must promptly send a copy of this Order to Defendants' counsel at Lu cy.Rand@azag.gov.(See document for further details). Signed by Senior Judge James A Teilborg on 9/9/2020. (Attachments: # 1 Service Packet Letter, # 2 Samples and Blank Service Forms, # 3 Blank Service Forms, # 4 Blank Service Forms, # 5 Blank Service Forms, # 6 Copy of Rule 4)(LAD)
FEDERAL RULES OF CIVIL PROCEDURE
Rule 4. Summons
(a) Contents; Amendments.
(1) Contents. A summons must:
(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintiff's attorney or—if unrepresented—of
(D) state the time within which the defendant must appear and defend;
(E) notify the defendant that a failure to appear and defend will result in a default
judgment against the defendant for the relief demanded in the complaint;
(F) be signed by the clerk; and
(G) bear the court's seal
(2) Amendments. The court may permit a summons to be amended.
(b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk
for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue
it to the plaintiff for service on the defendant. A summons—or a copy of a summons that is
addressed to multiple defendants—must be issued for each defendant to be served.
(1) In General. A summons must be served with a copy of the complaint. The plaintiff is
responsible for having the summons and complaint served within the time allowed by
Rule 4(m) and must furnish the necessary copies to the person who makes service.
(2) By Whom. Any person who is at least 18 years old and not a party may serve a
summons and complaint.
(3) By a Marshal or Someone Specially Appointed. At 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. The court must so order if the plaintiff is
authorized to proceed in forma pauperis under 28 U.S.C. §1915 or as a seaman under 28
(d) Waiving Service.
(1) Requesting a Waiver. An individual, corporation, or association that is subject to
service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving
the summons. The plaintiff may notify such a defendant that an action has been
commenced and request that the defendant waive service of a summons. The notice and
(A) be in writing and be addressed:
(i) to the individual defendant; or
(ii) for a defendant subject to service under Rule 4(h), to an officer, a
managing or general agent, or any other agent authorized by appointment
or by law to receive service of process;
(B) name the court where the complaint was filed;
(C) be accompanied by a copy of the complaint, 2 copies of the waiver form
appended to this Rule 4, and a prepaid means for returning the form;
(D) inform the defendant, using the form appended to this Rule 4, of the
consequences of waiving and not waiving service;
(E) state the date when the request is sent;
(F) give the defendant a reasonable time of at least 30 days after the request was
sent—or at least 60 days if sent to the defendant outside any judicial district of the
United States—to return the waiver; and
(G) be sent by first-class mail or other reliable means.
(2) Failure to Waive. If a defendant located within the United States fails, without good
cause, to sign and return a waiver requested by a plaintiff located within the United
States, the court must impose on the defendant:
(A) the expenses later incurred in making service; and
(B) the reasonable expenses, including attorney's fees, of any motion required to
collect those service expenses.
(3) Time to Answer After a Waiver. A defendant who, before being served with process,
timely returns a waiver need not serve an answer to the complaint until 60 days after the
request was sent—or until 90 days after it was sent to the defendant outside any judicial
district of the United States.
(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not
required and these rules apply as if a summons and complaint had been served at the time
of filing the waiver.
(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive
any objection to personal jurisdiction or to venue.
(e) Serving an Individual Within a Judicial District of the United States. Unless federal law
provides otherwise, an individual—other than a minor, an incompetent person, or a person whose
waiver has been filed—may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual
(B) leaving a copy of each at the individual's dwelling or usual place of abode
with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to
receive service of process.
(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an
individual—other than a minor, an incompetent person, or a person whose waiver has been
filed—may be served at a place not within any judicial district of the United States:
(1) by any internationally agreed means of service that is reasonably calculated to give
notice, such as those authorized by the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but
does not specify other means, by a method that is reasonably calculated to give notice:
(A) as prescribed by the foreign country's law for service in that country in an
action in its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter rogatory or letter of
(C) unless prohibited by the foreign country's law, by:
(i) delivering a copy of the summons and of the complaint to the
individual personally; or
(ii) using any form of mail that the clerk addresses and sends to the
individual and that requires a signed receipt; or
(3) by other means not prohibited by international agreement, as the court orders.
(g) Serving a Minor or an Incompetent Person. A minor or an incompetent person in a judicial
district of the United States must be served by following state law for serving a summons or like
process on such a defendant in an action brought in the courts of general jurisdiction of the state
where service is made. A minor or an incompetent person who is not within any judicial district
of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or
(h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or
the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other
unincorporated association that is subject to suit under a common name, must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a
managing or general agent, or any other agent authorized by appointment or by
law to receive service of process and—if the agent is one authorized by statute
and the statute so requires—by also mailing a copy of each to the defendant; or
(2) at a place not within any judicial district of the United States, in any manner
prescribed by Rule 4(f) for serving an individual, except personal delivery under
(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.
(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint to the United States
attorney for the district where the action is brought—or to an assistant United
States attorney or clerical employee whom the United States attorney designates
in a writing filed with the court clerk—or
(ii) send a copy of each by registered or certified mail to the civil-process
clerk at the United States attorney's office;
(B) send a copy of each by registered or certified mail to the Attorney General of
the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United
States, send a copy of each by registered or certified mail to the agency or officer.
(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a
United States agency or corporation, or a United States officer or employee sued only in
an official capacity, a party must serve the United States and also send a copy of the
summons and of the complaint by registered or certified mail to the agency, corporation,
officer, or employee.
(3) Officer or Employee Sued Individually. To serve a United States officer or employee
sued in an individual capacity for an act or omission occurring in connection with duties
performed on the United States’ behalf (whether or not the officer or employee is also
sued in an official capacity), a party must serve the United States and also serve the
officer or employee under Rule 4(e), (f), or (g).
(4) Extending Time. The court must allow a party a reasonable time to cure its failure to:
(A) serve a person required to be served under Rule 4(i)(2), if the party has served
either the United States attorney or the Attorney General of the United States; or
(B) serve the United States under Rule 4(i)(3), if the party has served the United
States officer or employee.
(j) Serving a Foreign, State, or Local Government.
(1) Foreign State. A foreign state or its political subdivision, agency, or instrumentality
must be served in accordance with 28 U.S.C. §1608.
(2) State or Local Government. A state, a municipal corporation, or any other statecreated
governmental organization that is subject to suit must be served by:
(A) delivering a copy of the summons and of the complaint to its chief executive
(B) serving a copy of each in the manner prescribed by that state's law for serving
a summons or like process on such a defendant.
(k) Territorial Limits of Effective Service.
(1) In General. Serving a summons or filing a waiver of service establishes personal
jurisdiction over a defendant:
(A) who is subject to the jurisdiction of a court of general jurisdiction in the state
where the district court is located;
(B) who is a party joined under Rule 14 or 19 and is served within a judicial
district of the United States and not more than 100 miles from where the
summons was issued; or
(C) when authorized by a federal statute.
(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal
law, serving a summons or filing a waiver of service establishes personal jurisdiction
over a defendant if:
(A) the defendant is not subject to jurisdiction in any state's courts of general
(B) exercising jurisdiction is consistent with the United States Constitution and
(l) Proving Service.
(1) Affidavit Required. Unless service is waived, proof of service must be made to the
court. Except for service by a United States marshal or deputy marshal, proof must be by
the server's affidavit.
(2) Service Outside the United States. Service not within any judicial district of the
United States must be proved as follows:
(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention;
(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or
by other evidence satisfying the court that the summons and complaint were
delivered to the addressee.
(3) Validity of Service; Amending Proof. Failure to prove service does not affect the
validity of service. The court may permit proof of service to be amended.
(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 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. This subdivision (m) does not apply to service in a foreign country
under Rule 4(f) or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A).
(n) Asserting Jurisdiction over Property or Assets.
(1) Federal Law. The court may assert jurisdiction over property if authorized by a
federal statute. Notice to claimants of the property must be given as provided in the
statute or by serving a summons under this rule.
(2) State Law. On a showing that personal jurisdiction over a defendant cannot be
obtained in the district where the action is brought by reasonable efforts to serve a
summons under this rule, the court may assert jurisdiction over the defendant's assets
found in the district. Jurisdiction is acquired by seizing the assets under the circumstances
and in the manner provided by state law in that district.
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