Manohar v. Baxter et al

Filing 29

ORDER denying without prejudice 28 Mr. Manohar's motion for default judgment; directing the U.S. Marshal to serve the summons and complaint via certified mail with a return receipt requested and delivery restricted to the addressees defendants Lieutenant Baxter and Mr. Vandergriff; and directing Mr. Manohar to provide to the Court within 14 days confirmation of the address or updated address and contact information for Mr. Ollo. Signed by Judge Kristine G. Baker on 2/14/2019. (jbh)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
LAKHRAJ MANOHAR
v.

PLAINTIFF
Case No. 3:16-cv-00076-KGB

BAXTER, et al.

DEFENDANTS
ORDER

Before the Court is plaintiff Lakhraj Manohar’s motion for default against defendants
Lieutenant Baxter and Vandergriff (Dkt. No. 28). Mr. Manohar argues that more than 21 days
have passed since Lieutenant Baxter and Mr. Vandergriff were served, and therefore he requests a
default judgment against Lieutenant Baxter and Mr. Vandergriff (Id.). For the reasons discussed
below, the Court denies Mr. Manohar’s motion for default and instead directs the United States
Marshal to attempt service upon the named defendants in strict compliance with the terms of this
Order. Should the United States Marshal have any questions or concerns about the terms of this
Order, the United States Marshal is asked to confer directly with Court staff.
I.

Background

On August 25, 2017, the Court granted Mr. Manohar’s motion for service (Dkt. No. 16).
Summons were issued for defendants Lieutenant Baxter, Mr. Ollo, and Mr. Vandergriff. As Mr.
Manohar has been granted leave to proceed in forma pauperis, the Court ordered that service be
made by a United States Marshal (Id.). See Fed. R. Civ. P. 4(c)(3). All three summons for the
defendants were returned “executed” to the Court on September 13, 2017, according to the Court’s
docket (Dkt. Nos. 17, 18, 19). Mr. Manohar moved for default judgment against all three
defendants because they did not answer within 21 days of being served (Dkt. No. 21). The Court
denied this motion because service was not effective on defendants, and the Court ordered the

United States Marshal for the Eastern District of Arkansas to serve the defendants via certified
mail, with a return receipt requested and delivery restricted to defendants (Dkt. No. 23 (emphasis
added)). These summonses were reissued as to the defendants and summons for Lieutenant Baxter
and Mr. Vandergriff were returned as “executed” according to the Court’s docket (Dkt. Nos. 25,
26). The summons for separate defendant Mr. Ollo was returned “unexecuted” according to the
Court’s docket (Dkt. No. 27). None of the defendants have filed answers, and Mr. Manohar has
now moved for a default judgment against Lieutenant Baxter and Mr. Vandergriff (Dkt. No. 28).
II.

Discussion

The Court concludes that service was not effective on Lieutenant Baxter or Mr.
Vandergriff. Because service was not effective on Lieutenant Baxter and Mr. Vandergriff, the
Court denies without prejudice the motion for default judgment (Dkt. No. 28).
Per Federal Rule of Civil Procedure 4(e), an individual may be served in any of the
following ways: (1) following the state laws for service where the individual is located; (2)
delivering a copy of the summons and complaint to the individual personally; (3) by leaving a
copy of the summons and complaint at the individual’s usual place of abode; or (4) by delivering
a copy of the summons and complaint to an authorized agent of the individual. Fed. R. Civ. P.
4(e). Per Arkansas Rule of Civil Procedure 4(d)(8)(A)(i), an individual may be served via certified
mail in the following way:
[B]y any form of mail addressed to the person to be served with a return receipt
requested and delivery restricted to the address or the agent of the addressee. The
addressee must be a natural person specified by name, and the agent of the
addressee must be authorized in accordance with U.S. Postal Service regulations.
Ark. R. Civ. P. 4(d)(8)(A)(i) (emphasis added).
Lieutenant Baxter and Mr. Vandergriff are individuals. It appears that an individual named
“Maggie Williams” received the summons that were issued for Lieutenant Baxter and Mr.
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Vandergriff (Dkt. Nos. 25, 26). There is no proof that service was personally made on defendants.
As the summons were delivered to St. Bernard’s Hospital in Jonesboro, Arkansas, such service
was not left at the defendant’s “usual place of abode.” While the “agent” box on the return receipts
for Lieutenant Baxter and Mr. Vandergriff are marked and apparently were marked by Ms.
Williams,1 the “Certified Mail Restricted Delivery” boxes are not marked, and the task to mark
those boxes falls to the United States Marshal (Dkt. Nos. 25, at 2; 26, at 2). The responsibility for
effectuating service properly under the rules of procedure based upon information provided by
plaintiff falls upon the Court and the United States Marshal under the circumstances. See Lee v.
Armontrout, 991 F.2d 487, 489 (8th Cir. 1993) (per curiam) (determining that an in forma pauperis
plaintiff should not be penalized by the United States Marshal’s failure to obtain proper service).
Because Arkansas law requires that service by certified mail also be “delivery restricted to the
addressee,” the Court concludes that Lieutenant Baxter and Mr. Vandergriff were not properly
served under the Federal Rules.
Further, the mail directed to separate defendant Mr. Ollo was returned unexecuted (Dkt.
No. 27). Mr. Manohar is directed to provide to the Court in writing within 14 days from the entry
of this Order confirmation that the Court has the correct address for Mr. Ollo or updated address
and contact information for Mr. Ollo to permit the Court to ensure effective, proper service. Lee,
991 F.2d at 489 (determining that an in forma pauperis plaintiff is responsible for providing the
United States Marshal with proper address for service of process on a defendant). If Mr. Manohar
fails to do so, the Court may dismiss Mr. Manohar’s claims against Mr. Ollo for failure to serve
timely Mr. Ollo. Fed. R. Civ. P. 4

1

There is no record evidence that Ms. Williams is an authorized agent to receive service
on behalf of Lieutenant Baxter or Mr. Vandergriff.
3

III.

Conclusion

It is therefore ordered that:
1.

Mr. Manohar’s motion for default judgment is denied without prejudice (Dkt. No.

2.

The United States Marshal for the Eastern District of Arkansas is directed to serve

28).

the summons and complaint via certified mail with a return receipt requested and delivery
restricted to the addressees defendants Lieutenant Baxter and Mr. Vandergriff.

Should the

United States Marshal have any questions or concerns about the terms of this Order, the United
States Marshal is asked to confer directly with Court staff.
3.

Mr. Manohar is directed to provide to the Court within 14 days from the entry of

this Order confirmation of the address or updated address and contact information for Mr. Ollo to
permit the Court to effectuate proper, timely service.
So ordered this the 14th day of February, 2019.

_______________________________
Kristine G. Baker
United States District Judge

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