BURRELL v. LLIEBERMAN et al

Filing 7

MEMORANDUM OPINION AND ORDER that on or before March 15, 2013, the plaintiff shall either file an affidavit proving service or show cause why this case should not be dismissed for failure to serve. Signed by Judge Paul L. Friedman on January 30, 2013. (MA)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
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THOMAS BURRELL,
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Plaintiff,
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v.
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MICHAEL W. LIEBERMAN, et al.,
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Defendants.
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__________________________________________)

Civil Action No. 12-0471 (PLF)

MEMORANDUM OPINION AND ORDER
The plaintiff, Thomas Burrell, commenced an action in the United States District
Court for the Western District of Tennessee by filing a “Motion for Ex Parte Temporary
Restraining Order.” Dkt. No. 1. The presiding judge transferred the case to this Court pursuant
to 28 U.S.C. § 1406(a) based on improper venue. See Dkt. No. 5-2.
A review of the docket suggests that the defendants have never been properly
served. Rule 4(c)(1) of the Federal Rules of Civil Procedure requires plaintiffs to ensure that a
summons is served on each defendant along with the complaint. Rule 4(e) identifies the means
through which a summons and complaint may be served on individuals within a judicial district
of the United States. Rule 4(l) requires plaintiffs to provide proof of service in the form of the
server’s affidavit (unless process has been served by a United States marshal).
Included with Mr. Burrell’s motion is a “Certificate of Service” stating that Mr.
Burrell served his motion on the five defendants by “placing same for service through the U.S.
District Court” and by mailing copies of the motion to the defendants through the U.S. Postal

Service. Dkt. No. 1 at 12. Mr. Burrell also filed with the Court an unsigned document labeled
both “Notice of Hearing” and “Affidavit,” which describes having mailed his motion to the
defendants. See Dkt. No. 3. Neither of these documents constitutes proof that service has been
properly served under Rule 4. There is no indication that a summons was ever issued by the
court or delivered to any defendant. Moreover, process generally may not be served by a party to
the case, Fed. R. Civ. P. 4(c)(2), or by simply mailing the summons and complaint to the
defendants. See Fed. R. Civ. P. 4(e). While a United States marshal or other person specially
appointed by the court may serve process at a plaintiff’s request upon court order, Fed. R. Civ. P.
4(c)(3), there is no record in the docket of a summons or complaint having been served in this
manner.
Before dismissing a complaint sua sponte for lack of proper service, a court must
provide notice to the plaintiff. Fed. R. Civ. P. 4(m) (“If a defendant is not served within 120
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.”) (emphasis added); see Brown v. Dist. of Columbia, 514 F.3d 1279,
1286 (D.C. Cir. 2008). Accordingly, it is hereby
ORDERED that on or before March 15, 2013, the plaintiff shall either file an
affidavit proving service or show cause why this case should not be dismissed for failure to
serve.
SO ORDERED.

DATE: January 30, 2013

/s/________________________
PAUL L. FRIEDMAN
United States District Judge
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