Neville v. McCaghren

Filing 7

ORDER denying 6 Motion for leave to serve ; granting 2 Motion for Leave to Proceed in forma pauperis. The Clerk is directed to send plaintiff a USM 285 form and a summons form. Signed by Magistrate Judge G. R. Smith on 8/22/17. (wwp)

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tiMTED STATES
DISTRICTCOTIRT
t.':-l .,'a

,',.,

DISTRICTOF GEORGIA
SOUTHERN
STATESBORO
DTYISION
ROBERTNEVILLE,

I
t

Plaintiff,

)

cv617-075
ELIZABETHC. MCCAGHREN,
Defendant.

Pro se plaintiff Robert Neville has filed another Complaint alleging
fraud and mismanagement of his lmother's estate by defendant Elizabeth
C. McCaghren, his half-sister. See doc. 1.

The Court dismissed a

previous lawsuit alleging substantially (if not virtually identically) the
samefacts without prejudice. See
Neuille u. McCaghren,CY6l5-028, doc.
38 (S.D. Ga. May 20,2016) (disurissalwithout prejudice); doc. 52 (S.D.
Ga. May 4,2017) (imposing specialhandling instructions on his future
filings); In re Neuille, MC6L7-001, doc. 3 (S.D. Ga. May 17,2017)
(authorizing filing of the instant case). Compare doc. 7, with Neuille,
CV615-028,doc. 10 (S.D. Ga. Jufre 5, 2015) (AmendedComplaint); and

Neuille.
CV615-028. 18 at2n.2 (S.D.
2
doc.
Ga.Dec.27, 015) (identifying
claims for "gross negligence," "breach of fiduciary duty," "simple
negligence,"
"exploitationof the elderly," and "tolling
"embezzlement,"
the statute of limitations

Neville seeks leave to proceed in forrna

pauperis (IFP). Doc. 2 at 9-10. The Court directedhim to provide
additional financial information in support of his request(doc.3), and he
complied. Doc. 4 (response);
doc. 5 (amendedresponse). Since he
appears
indigent, the Court GRA['{TS his request. Doc.2.
As this Court has previously explained,having sufficiently alleged
facts supporting subject matter jurisdiction, Neville's allegations are
sufficientto survivescreening
under 28 U.S.C.g 1915(eX2).r CV615See

I The Court is mindful
of the allegations, made in the context of his previous case,
that Neville is mentally iII and prorte to frivolous and vexatious litigation. See
CV615-028,doc. 48 (defendant's motion for sanctions) (S.D. Ga. April 13, 2077); doc.
48-1 (afftdavit attesting to frivolous litigation filed in state and federal courts in
Florida); doc. 52 at 4 (S.D. Ga. April 4, 2017) (noting that, after voluntarily
dismissing his case, "Plaintiff has repeatedly fiIed I'rivolous motions."). At the
screening stage, howevet, a pro se complaint must be liberally construed and its
allegationstaken as true. See,e.g.,Thompsonu. Rundle,393 F. App'x 675,878 Gltt'
Cir. 2010) (noting that pro se pleadings are "held to a less stringent standard" and
noting that dismissal is warranted "when the facts as pleaded" do not state a
plausible claim).
Given that standard, Neville's
is sufficient to be served on the
defendant. However, Neville is
that, even as apro se litigant, he is subject to
the Federal Rules of Civil Procedure including Rule 11's provisions concerning the
sigrrificance of signing papers filed with the Court and possible sanctions for
violations. See Fed. R. Civ. P. 1 (b) (sigrring or filing a pleading implies a

028, doc. 18 at 2-3 (Dec. 21, 2015). Unlike the dispute concerningthe
parties' citizenship that arose in that case, here Neville clearly alleges
facts sufficient to support diversity jurisdiction. See doc. 1 at 1 (alleging
Neville is a citizen of Louisiana and McCaghren is a citizen of either
Florida or North

Carolina), 6 (alleging $14.9 million

"in

actual

damages");28 U.S.C. $ 1332(a) (establishingsubject matter jurisdiction
"of all civil actions where the matter in controversv exceedsthe sum or

value of $75,000,exclusive i4terestsand costs,and is between
of
citizensof differentStates").
With jurisdictional requirements satisfied, the Court (again)
approvesthis casefor serviceon the defendant. To that end, the Court
will implement the service procedure deployed in Newton u. Food Lion,

LLC, CV4I5-153,
doc. 10 (S.D.Ga. Dec. 9, 2015) arrdSimmonsu. Fiue
Star Quality Care,Inc.,2014 6603759 * 4 (S.D.Ga.Nov. 19,2014),
WL
at
(S.D.
adopted,2015 307003
WL
Ga. Jan.23,2015).

certification, among other things, that "it is not being presented for any improper
purpose, such as to harass, causeurnecessa delay, or leedlessly increase the cost of
ry
Iitigation;" and the factual and legal contentions are properly supported); Moon u.
Newsorne,863F.zd 835, 837 (11th Cir. 1989) (affrrming sanctionsagainst a pro se
IFP litigant); LaFauors u. Thayer,2017 WI, 3034250at + 2 (11th Cir. JuIy L8,2017)
("Even when a pro se litigant is indigent or proceeding in forma pauperl's . . . , he is
subject to sanctions -- including morietary sanctions -- under [the Federal Rules of
Civil Procedurel.").

That processunfolds in stages. Since the Court has authorized
IFP, Rule 4 servicemust be madeby the United States
Neville to proceed
MarshalsService. Fed. R. Civ. P. 4(c)(3)(the court "must" order that
servicebe madeby the Marshal "if the plaintiff is authorizedto proceed
[IFP]"). But the Marshalneedsto know where to servethe defendant,
and that information must come from the plaintiff.

See Bowman u.

at
Johnson,20rc WL 1225693 * 1 (E.D. Ya. Mar. 26, 2070)("It is well
established that Plaintiff is respqnsible for providing the Court and the

Marshal the proper address servinga defendant.")(citing, inter alia.,
for
Lee u. Armontrout,99l F.2d 487,489(Sth Cir. 1993)). Hence,the Clerk
is DIRECTED to sendplaintiff a USM 285 form and a summonsform.
Within

twenty-one days of thFt mailing, plaintiff

must accurately

complete both forms2 and return them to the Clerk.

The Clerk 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. S.D. Ga. L. Civ. R, 41,1.
If plaintiff returns the required forms, the Clerk will prepare a

' Both forms require the plaintiff to

the defendant'sname and address.

service waiver package for the defendant. Fed. R. Civ. P. 4(dX1).3 Ttrat
packagemust include: a Rule 4 notice of Lawsuit and Request to Waive
Service of Summons (prepared by the Clerk); two copiesof the Waiver of
the Service of Summons form (prepared by the Clerk); an envelope
addressedto the Clerk of Court with adequate first-class postage for use
by the defendant for return of the waiver form; one copy of the
Complaint, and one copy of this Order. The Clerk shall retain and docket
the original USM 285 forms and ]the summons returned by the plaintiff.
SeeDunn,20I4WL 1028949 * 3.
at
Next, the Clerk shall mail the service waiver package to the
defendant. The defendant is under a dutv to avoid unnecessary costs of
3

Although Rule 4's Marshal-service mandate is clear, the Court's interest in
preserving resources and minimizing burden on the Marshal's staff support
attempting to secure defendant's waiver of formal service,as contemplated by Fed. R.
Civ. P. 4(d) and this Court's Locai Rules. See S.D. Ga. L. Civ. R.4.5 ("In casesin
which the plaintiff is authorized to proceed IIFPI . . ., unless personal service by the
Marshal is ordered by the Court, the Marshal may utilize any other form of serviceor
waiuer authorized by Federal Rule of Civil Procedure 4." (emphasis added)); seealso
CharlesAlan Wright, Arthur R. Miller, et aL,4A Fed. Prac. & Proc. Civ. $ 1090 (4th
ed. 2077) {aotiag Lhat the policy supporting Marshal service for IFP plaintiffs "is to
provide serwicefor those who cannot afford private service," but "the plaintiff [or, in
this case, the Clerkl should first attempt to make service by some other means
provided for in the rule; only when this proves unfeasible" should service by the
Marshal be used). Other Courts have also directed that Court stafTmake an attempt
to secure defendant's waiver of formal service before requiring the Marshal to effect
formal service. See, e.g., Dunn u. FeQeral Express, 2014 WL 7028949at *2-3 (N-D.
Ga. Mar. 14,2OL4) (directing attempt]to secure service waiver, and directing USMS
service "[i]n the event Defendant doe$not return the Waiver of Service form to the
Clerk of Court" within the specifiedperiod).

I

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,
unless good cause can be shown for failure to return the Waiver of
Service form. See Fed. R. Civ. P. 4(d)(2). Should McCaghren fail to
waive service within sixty days following the date the service waiver
packageis mailed (the Clerk shall docket that act), the Clerk will prepare
and transmit a service package to the Marshal.

The service package

must include the fully completed]UsM 285 form, the summons, one copy
of the Complaint, and one copy of this Order. Upon receipt of the service
package,the Marshal is DIRECTED to prompUy serve the defendant.
Once the Complaint is served upon the defendant, Neville must
then serve her (through her counsel, if she is represented) with 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. The 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 must also fteep the Court and defendant advised of

his current address at all times during the pendency of this action.
Failure to do so may result in dismissal of his Complaint. Neville must
also litigate his case,conduct and respond to discovery, and comply with
both the Federal Rules of Civil Procedure, which are available at
http://www.uscourts.gov/sites/default/files/RulesTo20ofYo2jCivilVo20Proce
dure,

and

this

Court's

Local

Rules, which

are

available at

gov/Irilr1.htm.
http://www.gasd.uscourts.
Because the Court is imn]ementing the service processoutlined
above, Neville's motion for leave to serve lawsuit, doc. 6, is DENIED as

moot.

n
,y

SO OR,DERED,this,? dayof August,201-7.
GISTRATE
JUDGE
DISTRICTOF GEORGIA
SOUTHERN

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