Neville v. McCaghren

Filing 18

ORDER denying 3 Motion for service ; denying 8 Motion to deem admitted items in request for admission ; denying 16 Motion for summons. Signed by Magistrate Judge G. R. Smith on 12/21/15. (bcw)

FILED
SAAr4MH DIV.

UNITED STATES DISTRICT COURI!.S. DISTRICT COURT
SOUTHERN DISTRICT OF GEORG5 DEC 21 AM 10:38
STATE SBORO DIVISION

CLER$

14

GA.

SO. DIST.
ROBERT NEVILLE,
Plaintiff,
Case No. CV615-028
ELIZABETH C. MCCAGHREN,
Defendant.

Is) 1 I) DI

Proceeding pro Se, Robert Neville asserts a bevy of state law claims
against his sister, Elizabeth McCaghren, related to her disposition of
their mother's estate. Does. 1, 10. Unable to discern whether it
possessed subject matter jurisdiction over this case, the Court ordered
Neville to amend his Complaint to include the citizenship of the parties
and clarify his claims. See doe. 7. He complied. Doe. 10.
From the amended Complaint's new allegations, it appears
diversity jurisdiction exists.' Neville states that he is a resident of
Florida, though he lacks a "stable residence and [] receives mail at the

1

Under 28 U.S.C. § 1332(a), district courts "have original jurisdiction of all civil
actions where the matter in controversy exceeds. . . $75,000 . . . and is between. .
citizens of different states."

I
11

address" (in Gainesville, Florida) used in his Complaint. Doe. 10 at 1.
McCaghren, he says, "is a resident of two 'cabins' in a ski resort near
Mars Hill, North Carolina." Id. Because the value of the real property
(located in Bulloch County, Georgia, within the Southern District) at
issue far exceeds $75,000 ($14.9 million, according to Neville), the Court
finds the requirements of diversity jurisdiction satisfied. See 28 U.S.C. §
1332(a).
The Court's previous Order also questioned whether the substance
of Neville's claims triggered the probate exception to diversity
jurisdiction. See doc. 7 at 4; Marshall v. Marshall, 547 U.S. 293, 311
(2006) (a federal "court may not exercise its jurisdiction to disturb or
affect the possession of property in the custody of a state court.")
(quoting Markham v. Allen, 326 U.S. 490, 494 (1946)). As expected, that
exception does not apply here because deciding Neville's claims will not
require the Court to "interfere with. . . probate proceedings." Marshall,
547 U.S. at 311 (emphasis omitted). This case, though tangentially
involving distribution of estate assets, sounds in fraud and will not
2

Neville asserts claims for "gross negligence," "breach of fiduciary duty," "simple
negligence," embezzlement," "exploitation of the elderly," and "tolling the statute of
limitations." Doe. 10 at 4-6.
2

require this Court to "assume in rem jurisdiction over the same res" as a
state court. Id.
With jurisdiction satisfied, the Court greenlights this case. Hence,
the defendant will have to be served with process. To that end, the Court
will implement the service procedure 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).
That process unfolds in stages. Since the Court has authorized IFP
status for Neville, Rule 4 service must be made by the United States
Marshals Service. Fed. R. Civ. P. 4(c)(3) (the court "must" order that
service be made by the Marshal "if the plaintiff is authorized to proceed
[IFP]"). But the Marshal needs to know where to serve the defendant,
and that information must come from the plaintiff. Hence, these
preliminary steps are required: The Clerk shall send to plaintiff a USM
285 form and a summons form. Within twenty-one days of that mailing,
plaintiff must accurately complete both forms 3 and return them to the
Clerk, who will then forward a copy of each to the defendant. The Clerk
Both forms require the plaintiff to list the defendant's name and proper address.
3

is instructed to notify the undersigned if plaintiff fails to comply. Should
plaintiff fail to comply, this action may be dismissed for failure to obey a
Court order. Local Rule 41.1.
Should that phase of the Rule 4 service cycle be completed, the
Clerk will prepare a service waiver package for the defendant. Rule
4(d)(1). That package must include: a Rule 4 Notice of Lawsuit and
Request to Waive Service of Summons' (prepared by the Clerk); two
copies of the Waiver of the Service of Summons form (prepared by the
Clerk); an envelope addressed to the Clerk of Court with adequate first
class postage for use by the defendant for return of the waiver form; one
(1) copy of the Complaint; and one (1) copy of this Order. The Clerk
shall retain and docket the original USM 285 forms and the summons
returned by the plaintiff. See Dunn v. Fed. Express, 2014 WL 1028949 at
* 3 (N.D. Ga. Mar. 14, 2014).
Next, the Clerk shall mail the service waiver package to the
defendant. The defendant is under a duty to avoid unnecessary costs of
personally serving the summons. If she fails to comply with the mailed
request for waiver of service, she must bear the costs of personal service
The Clerk also shall complete the lower portion of the AO 398 Notice of Lawsuit
and Request for Waiver form by printing plaintiffs name and also his address data.
4

U

unless good cause can be shown for failure to return the Waiver of
Service form. Should McCaghren fail to waive service within sixty (60)
days following the date the service waiver package was mailed (the Clerk
shall docket that act), the Clerk will prepare and transmit to the Marshal
a service package. The service package must include the fully completed
USM 285 form, the summons, and one (1) copy of the Complaint, plus a
copy of this Order. The Marshal will then promptly serve the defendant.
The executed waiver form or the completed USM 285 form shall be filed
with the Clerk. See Dunn, 2014 WL 1028949 at * 2-3.
Once Neville's Complaint is served upon the defendant, he must
then serve her (through her counsel, if she is represented) a copy of every
additional pleading or other document which he files with the Court. See
Fed. R. Civ. P. 5. He also shall include with each paper so filed a
certificate stating the date on which he mailed an accurate copy of that
paper to the defendant or her counsel. This Court will disregard any
papers submitted which have not been properly filed with the Clerk or
which do not include a certificate of service.
Finally, plaintiff also must keep the Court and defendant advised of
his current address at all times during the pendency of this action.
5

PT
Failure to do so may result in dismissal of his Complaint. Neville also
must litigate his case, conduct and respond to any discovery, and comply
with both the Federal Rules of Civil Procedure and this Court's Local
Rules, which are available online:
http://www.gasd.uscourts.gov/lr/Irl.htm.
Because the Court is implementing the service process outlined
above, Neville's motion for service by certified mail (doe. 3) and motion
for summons (doe. 16) are DENIED AS MOOT. And because discovery
has yet to commence, his motion to deem admitted discovery requests he
allegedly sent to McCaghren (doe. 8) is DENIED as premature.
SO ORDERED this,/ ay of December, 2015.

JUDGE
SOUTHERN DISTRICT OF GEORGIA

IV