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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i! l 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 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 7

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