Cross v Pay It Forward Animal Welfare Network, Inc., et al.

Filing 14

ORDER denying 10 motion for appointment of the U.S. Marshals Service to serve process; denying 11 motion for reconsideration; denying 13 motion to appoint counsel. Signed by Judge G. Patrick Murphy on 2/8/2012. (MAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
ALFRED L. CROSS
)
Plaintiff,
)
)
vs.
) CIVIL NO. 11 - 318 - GPM
PAY IT FORWARD ANIMAL WELFARE )
NETWORK, INC., (PIFAWN) NON- )
PROFIT, et al,
)
Defendants.
)

MEMORANDUM AND ORDER
MURPHY, District Judge:
There are three pending motions, filed by Plaintiff, currently before the Court. The motions
are as follows: a motion for appointment of the U.S. Marshals Service to serve process, a motion for
reconsideration of this Court’s prior Order, and a motion to appoint counsel. The first matter this
Court will consider is Plaintiff’s motion for appointment of the U.S. Marshals Service to serve
process on Defendants (Doc. 10). The Court may exercise discretion to appoint the U.S. Marshals
Service. FED. R. CIV. P. 4(c)(3). Such an appointment will be made where personal service by a law
enforcement officer appears necessary or advisable to keep the peace. See FED. R. CIV. P(c)(3)
advisory committee note (1993).
The materials on file show that Plaintiff sent form requests for waiver of service to
Defendants by certified mail on August 10, 2010 (Doc. 2). Some Defendants appeared in October
2010 (Doc. 3). There is no indication Plaintiff presented summons to the Clerk for issuance or that
he attempted personal service on the remaining Defendants. See FED. R. CIV. P. 4(b), (e), (h). It
does not appear that personal service by a member of the U.S. Marshals Service is necessary or
advisable at this time. The motion (Doc. 10) is DENIED, without prejudice.

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Secondly, this Court must address Plaintiff’s motion to reconsider this Court’s prior order
dated December 27, 2011. The Federal Rules of Civil Procedure do not specifically address motions
to “reconsider.” The Seventh Circuit has held, however, that a motion challenging the merits of a
district court order will automatically be considered as having been filed pursuant to Rule 59(e) or
Rule 60(b) of the Federal Rules of Civil Procedure. See, e.g. Mares v. Busby, 34 F.3d 533, 535 (7th
Cir. 1994); United States v. Deutsch, 981 F.2d 299, 300 (7th Cir. 1992). "Under which rule the
motion falls turns on the time at which the motion is served. If the motion is served within ten days
of the rendition of judgment, the motion falls under Rule 59(e); if it is served after that time, it falls
under Rule 60(b).” United States v. Deutsch, 981 F. 2d 299, 200 (7th Cir. 1993).
In this case, Plaintiff’s motion was filed more than ten days after the Court’s December 27,
2011, Order. As such, Plaintiff’s motion to reconsider must be analyzed under Federal Rule of Civil
Procedure 60(b). Rule 60(b) provides relief from judgment or order for “mistake, inadvertence,
surprise, or excusable neglect.” FED. R. CIV. P. 60(b)(1). However, the reasons offered by movant
for setting aside an order or judgment must be something that could not have been employed to
obtain a reversal by direct appeal. See e.g., Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir.
2000). Upon review of the record, the Court remains persuaded that its ruling dismissing
Defendants Eckert, Jennings, and Illinois Department of Agriculture from this action (Doc.8), was
correct. Therefore, Plaintiff’s motion for reconsideration is DENIED.
Finally, this Court must consider Plaintiff’s motion for appointment of counsel.
There is no constitutional or statutory right to appointment of counsel in federal civil cases.
Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); Santiago v. Walls, 599 F.3d 749, 76061 (7th Cir. 2010). When presented with a request to appoint counsel, the Court must make the

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following inquiries: “(1) has the . . . plaintiff made a reasonable attempt to obtain counsel or
effectively been precluded from doing so and (2) given the difficulty of the case, does the
plaintiff appear competent to litigate it himself.” Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir.
2007).
With regard to the first step of the inquiry, Plaintiff does not indicate whether he has
made any attempt to obtain counsel. Plaintiff only states that a “paralegal who had experience in
federal procedure” had been assisting him in his initial filings (Doc. 13). Accordingly, Plaintiff
fails to satisfy the first step of the inquiry articulated in Pruitt. Moreover, at this early stage and
time, the Court concludes Plaintiff appears to be competent to litigate his case. Future
developments may change the Court’s mind on whether counsel should be appointed or not.
Plaintiff’s motion for the appointment of counsel (Doc. 13) is DENIED without prejudice.
In conclusion, Plaintiff’s motion for appointment of the U.S. Marshals Service to serve
process (Doc. 10) is DENIED. Plaintiff’s motion for reconsideration (Doc. 11) is DENIED.
Plaintiff’s motion for the appointment of counsel (Doc. 13) is DENIED.
Since Plaintiff made some attempt to effectuate service of process prior to this Court’s
first deadline, Plaintiff will be given additional time to effectuate service of process.
Accordingly, NOTICE IS HEREBY GIVEN that this case against the remaining unserved
defendants will be DISMISSED without prejudice by the Court for failure of Plaintiff to
properly prosecute unless service is complete by February 17, 2012.
IT IS SO ORDERED.

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DATED: February 8, 2012

G. PATRICK MURPHY
United States District Judge

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