Humphrey et al v. Cain et al

Filing 3

ORDER that, because Plaintiff has paid the $400.00 filing fee and is proceeding pro se, the Court will provide him with basic instructions regarding the development and progression of this case; instructing Plaintiff that he is responsible for s erving the Defendants with a copy of the complaint and the notice of lawsuit and request for waver of service of summons and the waiver of service of summons forms; directing the Clerk to attach the appropriate number of forms to Plaintiff's ser vice copy of this Order; informing Plaintiff that he has ninety (90) days from the date of this Order to serve Defendants, and failure to do so may result in their dismissal from this lawsuit or dismissal of this case, etc. Signed by Magistrate Judge Brian K. Epps on 8/25/2016. (jah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
MICHAEL L. HUMPHREY,
Plaintiff,
v.
CHEATAM, P.A.; CAIN, P.A.;
MILLS, P.A.; MENDOZA, Dr.;
and, ALSTON, Dr.,
Defendants.

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CV 116-117

ORDER
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Plaintiff has paid the $400.00 filing fee in the above-captioned case. Because he is
proceeding pro se, the Court will provide him with basic instructions regarding the development
and progression of this case.

Initially, Plaintiff is responsible for serving Defendants. The Clerk of Court will
provide Plaintiff with an appropriate number of copies of (1) the notice of lawsuit and
request to waive service of summons form, and (2) the waiver of service of summons form.1
To properly request that the individual Defendants waive personal service, Plaintiff must:
(1)

complete both forms for each individual defendant; and

(2)

mail the completed notice form, along with a copy of the file-stamped

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The Court DIRECTS the CLERK to attach the appropriate number of forms to
Plaintiff’s service copy of this Order so that Plaintiff can request waiver of service for the five
individual defendants.

complaint and two waiver forms, to each of the individual defendants by first
class mail, with a prepaid means for returning the waiver form, and request
that the defendant waive formal service of the summons.
Fed. R. Civ. P. 4(d).
Individual and corporate defendants have a duty to avoid unnecessary costs of serving the
summons, and any defendant who fails to comply with the request for waiver must bear the costs
of personal service unless good cause can be shown for the failure to return the waiver. Fed. R.
Civ. P. 4(d)(2). A defendant whose return of the waiver is timely does not have to answer the
complaint until sixty days after the date Plaintiff mails the request for waiver. Fed. R. Civ. P.
4(d)(3). However, should a defendant choose not to waive formal service of the summons,
Plaintiff is still responsible for properly effecting service of the summons and complaint. Fed. R.
Civ. P. 4(c)(l).

Plaintiff is HEREBY NOTIFIED that he has ninety days from the date of this Order
to serve Defendants,2 and failure to do so may result in their dismissal from this lawsuit or
dismissal of this case. Fed. R. Civ. P. 4(m).
IT IS ORDERED THAT Plaintiff shall serve upon Defendants, or upon their
attorneys if appearances have been entered by counsel, a copy of every further pleading or
other document submitted to the Court. Plaintiff shall include with the papers to be filed a
certificate stating the date a true and correct copy of any document was mailed to Defendants

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While Fed. R. Civ. P. 4(m) provides for ninety days from the date the complaint is filed
to effect service, given that much of the time for service had expired by the time Plaintiff
submitted the $400.00 filing fee, the Court grants Plaintiff ninety days from the date of this
Order to properly accomplish service.
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or their counsel. Fed. R. Civ. P. 5; Loc. R. 5.1. Every pleading shall contain a caption
setting forth the name of the court, the title of the action, and the file number. Fed. R. Civ. P.
10(a). Any paper received by a District Judge or Magistrate Judge that has not been properly
filed with the Clerk of Court or that fails to include a caption or certificate of service will be
returned.
It is Plaintiff’s duty to cooperate fully in any discovery that may be initiated by
Defendants. Upon being given at least five days notice of the scheduled deposition date,
Plaintiff shall appear and permit his deposition to be taken and shall answer, under oath and
solemn affirmation, any question that seeks information relevant to the subject matter of the
pending action. Failing to answer questions at the deposition or giving evasive or incomplete
responses to questions will not be tolerated and may subject Plaintiff to severe sanctions,
including dismissal of this case. Defendants shall ensure that Plaintiff’s deposition and any
other depositions in the case are taken within the 140-day discovery period allowed by this
Court’s Local Rules.3
While this action is pending, Plaintiff shall immediately inform this Court and
opposing counsel of any change of address. Failure to do so will result in dismissal of this
case.
Plaintiff must pursue this case and failure to do so may result in dismissal for want of
prosecution. Fed. R. Civ. P. 41; Loc. R. 41.1. If Plaintiff wishes to obtain facts and
information about the case from Defendants, Plaintiff must initiate discovery. See generally
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The Local Rules and commonly used Forms may be found on the Court’s website at
www.gasd.uscourts.gov/.
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Fed. R. Civ. P. 26 through 37 (containing the rules governing discovery and providing for the
basic methods of discovery). Plaintiff should begin discovery promptly and complete it
within four months after the filing of the first answer of a defendant named in the original
complaint.
Interrogatories are a practical method of discovery for pro se litigants. See Fed. R.
Civ. P. 33. Interrogatories shall not contain more than twenty-five questions. Id. Plaintiff
must have the Court’s permission to propound more than one set of interrogatories to a party.
Discovery materials should not be filed routinely with the Clerk of Court. Exceptions
include when the Court directs filing; when a party needs such materials in connection with a
motion or response, and then only to the extent necessary; and when needed for use at trial.
If Plaintiff wishes to file a motion to compel pursuant to Fed. R. Civ. P. 37, he should first
contact the attorney for Defendants and try to work out the problem. If Plaintiff proceeds
with the motion to compel, he should file therewith a statement certifying that he has
contacted opposing counsel in a good faith effort to resolve any dispute about discovery.
Loc. R. 26.5.
Plaintiff must maintain a set of records for the case. If papers are lost and new copies
are required, these may be obtained from the Clerk of the Court at the standard cost of fifty
cents per page.
Under this Court’s Local Rules, a party opposing a motion to dismiss shall file and
serve his response to the motion within fourteen days of its service. “Failure to respond
within the applicable time period shall indicate that there is no opposition to a motion.” Loc.
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R. 7.5. Therefore, if Plaintiff fails to respond to a motion to dismiss, the Court will assume
that there is no opposition to the motion and will grant the dismissal.
A response to a motion for summary judgment must be filed within twenty-one days
after service of the motion. Loc. R. 7.5, 56.1. A failure to respond shall indicate that there is
no opposition to the motion. Loc. R. 7.5. Furthermore, each material fact set forth in a
defendant’s statement of material facts will be deemed admitted unless specifically
controverted by a statement filed by Plaintiff. Loc. R. 56.1. Should Defendants file a motion
for summary judgment, Plaintiff is advised that he will have the burden of establishing the
existence of a genuine issue as to any material fact in this case. That burden cannot be
carried by reliance on the conclusory allegations contained within the complaint. Should a
factual assertion in a defendant’s motion for summary judgment be supported by affidavits or
other materials in the record as provided in Fed. R. Civ. P. 56(c), Plaintiff must respond in
kind with counter-affidavits or other such materials, if he desires to contest a defendant’s
factual assertion. Should Plaintiff fail to properly address a defendant’s factual assertions
and show that there is a genuine issue for trial, the factual assertions made in the defendant’s
motion which are properly supported will be accepted as undisputed and, if the defendant is
entitled to judgment as a matter of law, summary judgment will be entered against Plaintiff

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pursuant to Fed. R. Civ. P. 56.
SO ORDERED this 25th day of August, 2016, at Augusta, Georgia.

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