elaga-bey v. Matthews et al
ORDER offering pro-se plaintiff instructions on how to proceed with service and future filings in this case. Signed by Magistrate Judge Brian K. Epps on 10/13/16. (cmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
TAQI ELAGA-BEY, Aboriginal Native
American Freehold by Birthright,
KIMBERLEY MATTHEWS, Aldridge
Pite, LLP, 15 Piedmont Center, 3575
Piedmont Road, N.E., Suite 500
Atlanta, Georgia 30305;
Wells Fargo Bank, N.A. 420 Montgomery
Street, San Francisco, CA 94104; and
GERLINDE BERRY, Wells Fargo Bank,
N.A., 420 Montgomery
Street, San Francisco, CA 94104,
Plaintiff has paid the $400.00 filing fee in the above-captioned civil rights case.
Because he is proceeding pro se, the Court will provide Plaintiff with some basic instructions
regarding the development and progression of this case.
Initially, Plaintiff is responsible for serving the defendants. In order to properly
request that the defendants waive personal service 1, Plaintiff must
The docket reflects that Plaintiff has already obtained from the Clerk of Court
summons for Defendants, to be used for effecting personal service. (See doc. no. 5.)
Nevertheless, for the benefit of pro se Plaintiff, the Court provides instructions herein for
how he may request that the defendants waive service.
obtain from the Clerk of Court an appropriate number of copies of
the notice of lawsuit and request to waive service of summons form, and
the waiver of service of summons form;
complete both forms for all defendants; and
mail the completed notice form, along with a copy of the file-stamped
complaint and two waiver forms, to each of the 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).
Plaintiff must serve the defendants within ninety days from the date his complaint
was filed, and failure to do so may result in the dismissal of individual defendants or the
entire case. Fed. R. Civ. P. 4(m). Individuals, corporations, partnerships, and associations
have a duty to avoid unnecessary expenses of serving the summons, and a defendant who
fails to sign and return a waiver without good cause must bear the expenses incurred in
making personal service. Fed. R. Civ. P. 4(d)(1) & (2). A defendant whose return of the
waiver is timely does not have to answer the complaint until sixty (60) 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 personal service of the summons and complaint, Plaintiff is still
responsible for properly effecting personal service. Fed. R. Civ. P. 4(c), (e) & (h).
IT IS ORDERED THAT Plaintiff shall serve upon the defendants, or upon their
attorneys if appearance has 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 each
defendant or defendant’s 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 the
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. The 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. 2
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
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 any defendant, Plaintiff must initiate discovery.
The Local Rules and commonly used Forms may be found on the Court’s website at
generally 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 the time limit set forth in Local Rule 26.1(d).
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 (25) 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 the 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 ($.50) 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.
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 a defendant 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 the
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 a
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
SO ORDERED this 13th day of October, 2016, at Augusta, Georgia.
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