Jackson-Alleyne v. SNF Holding Company/Chemtall

Filing 13

ORDERED that within 21 days of the date this Order is served, plaintiff must re-submit the same paperwork (the Clerk is directed to send her a fresh set) with the service address. ( Compliance due by 1/13/2017.) Signed by Magistrate Judge G. R. Smith on 12/23/16. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
BERNELL JACKSON-ALLEYNE,
Plaintiff,
v.
SNF HOLDING COMPANY/
CHEMTALL,
Defendant.

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CV415-326

ORDER
In this employment discrimination case, the Court ordered Bernell
Jackson-Alleyne to amend her Complaint to cure specified deficiencies.
Doc. 6. She filed a Second Amended Complaint and the Court greenlit it,
granted her leave to proceed in forma pauperis (IFP), and implemented
the Fed. R. Civ. P. 4 service procedure for IFP litigants as deployed in

Newton v. Food Lion, LLC , CV415-153, doc. 10 (S.D. Ga. Dec 9, 2015)
and Simmons v. Five Star Quality Care, Inc ., CV414-203, 2014 WL
6603759 at * 4 (S.D. Ga. Nov. 19, 2014), adopted, 2015 WL 307003 (S.D.

Ga. Jan. 23, 2015).1 Doc. 11. As explained then, the service process
unfolds in stages, and to begin that process plaintiff must supply the

Id . at 2-3. Hence, the Court sent

Marshal with service information.

Jackson-Alleyne a “USM 285” form and a summons form, and gave her
21 days to accurately complete both forms, reminding that:
Both forms require the plaintiff to list the defendant’s name and
proper address. These forms may be addressed “to an officer, a
managing or general agent, or any other agent authorized by
appointment or by law to receive service of process.” Fed. R. Civ.
P. 4(d))(1)(A)(ii). A corporation’s principal office address can be
found here: https://ecorp.sos.ga.gov .
1

Jackson-Alleyne, once granted IFP status, was entitled to service by the U.S.
Marshal:
[28 U.S.C. §] 1915, entitled “Proceedings in forma pauperis,” instructs that
“[t]he officers of the court shall issue and serve all process, and perform all
duties in such cases.” 28 U.S.C. § 1915(d) (emphasis added). Federal Rule of
Civil Procedure 4(c), likewise, requires that “[t]he court must so order [service
to be made by a United States Marshal or deputy marshal] if the plaintiff is
authorized to proceed in forma pauperis under 28 U.S.C. § 1915 . . . .” Fed. R.
Civ. P. 4(c)(3). “Together, Rule 4(c)(2) and 28 U.S.C. § 1915(c) stand for the
proposition that when a plaintiff is proceeding in forma pauperis the court is
obligated to issue plaintiff's process to a United States Marshal who must in
turn effectuate service upon the defendants, thereby relieving a plaintiff of the
burden to serve process once reasonable steps have been taken to identify for
the court the defendants named in the complaint.” Byrd v. Stone , 94 F.3d 217,
219 (6th Cir. 1996). See also Graham v. Satkoski , 51 F.3d 710, 712 (7th Cir.
1995) (“The Marshals Service is required to serve process on behalf of
individuals proceeding in forma pauperis.”).

Rance v. Rocksolid Granit USA, Inc ., 583 F.3d 1284, 1286-87 (11th Cir. 2009); see
also Tanne v. Comm’r of IRS, 2016 WL 5173243 at * 3 (D. Utah Sept. 21, 2016)
(“Rule 4(c)(3) requires the court to order a United States marshal, a deputy marshal,
or a person specially appointed by the court to effect service if the court grants the
plaintiff leave to proceed [IFP].”).
2

Doc. 11 at 3 n. 1 (emphasis added).
Plaintiff did not timely respond. (The Order was served on
October 25, 2016, doc. 11, so her deadline was, as the Clerk docketnoted, November 15, 2016. She did not file the completed USM 285
form, however, until almost a month later on December 12, 2016).
Doc. 12. The Court will indulge her on that score -- just this once.
However, she also supplied only SNF Holding’s street address,
doc. 12, not the service address of “an officer, a managing or general
agent, or any other agent authorized by appointment or by law to
receive service of process.” Rule 4(d))(1)(A)(ii). And it is not the
Marshal’s job to undertake private investigative work or otherwise
beat the bushes in a non-inmate case. 2

2

Plaintiff is not an inmate. See Richardson v. Johnson , 598 F.3d 734, 739-40 (11th
Cir. 2010) (it was “unreasonable to expect incarcerated and unrepresented prisonerlitigants to provide the current addresses of prison-guard defendants who no longer
work at the prison[;]” so “as long as the court-appointed agent can locate the prisonguard defendant with reasonable effort, prisoner-litigants who provide enough
information to identify the prison-guard defendant have established good cause [to
avoid dismissal for failing to timely serve a defendant].”).
She thus is entitled to no special dispensation here. Put another way, she is
entitled to “to rely upon service by the U.S. Marshals and should not be penalized for
failure of the Marshal's Service to properly effect service of process, where such
failure is through no fault of the litigant.” Lindsey v. U.S. R.R. Retirement Bd ., 101
F.3d 444, 447 (5th Cir. 1996) (quotes and cite omitted). But “plaintiff may not
remain silent and do nothing to effectuate such service. At a minimum, a plaintiff
3

Accordingly, the Court now converts its “may” invitation (that
was error) to a “must” directive. Within 21 days of the date this
Order is served, plaintiff must re-submit the same paperwork (the
Clerk is DIRECTED to send her a fresh set) with the service address
of “an officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of process.”
Fed. R. Civ. P. 4(d))(1)(A)(ii). Failure to comply may result in a
recommendation of dismissal.

SO ORDERED , this 23nd day of December, 2016.
•,/
UNITED STATES MAGISTRATE JUDGE
SOUTFEERN DISTRICT OF GEORGIA

should request service upon the appropriate defendant and attempt to remedy any
apparent service defects of which a plaintiff has knowledge.” Id . (quotes omitted).
The Court is pointing out an apparent service defect here ( i.e. , the corporate
defendant’s mailing address is not sufficient), imparting that “defect knowledge” to
the plaintiff and reminding her that it is her burden to supply actual service contact
information. See Clark v. AT&T Crp ., 2013 WL 6014343 at * 2 (D. Md. Nov. 12,
2013) (“Plaintiff attempted to serve AT&T by directing the U.S. Marshal to deliver
the Summons and Complaint to Defendant Holton, who is an employee of AT & T. 4.
Holton is not an officer, managing or general agent, or a person authorized by
appointment or law to receive service of process on behalf of AT&T as required under
Federal Rule 4(h), Maryland law, or Alabama law. Thus, Plaintiff failed to effectuate
service of process on AT&T.”) (cites omitted); Hamilton v. United Parcel Service,
Inc ., 2012 WL 760714 at * 1 n. 1. (E.D. Tex. Feb. 13, 2012).
2