Nunez (ID 84911) v. Heimgartner et al

Filing 84

MEMORANDUM AND ORDER denying without prejudice 80 Plaintiff's Motion for Leave to Extend Deadline to Effect Service on Defendants Maddox, Shmucker, Lansaw, and Two Unidentified Defendants. Signed by Magistrate Judge Teresa J. James on 1/26/2018. (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EDDIE NUNEZ,
Plaintiff,
v.
JAMES HEIMGARTNER, et al.,
Defendants.

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Case No. 15-3259-EFM-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Leave to Extend Deadline to
Effect Service on Defendants Maddox, Shmucker, Lansaw, and Two Unidentified Defendants
(ECF No. 80). In his motion, Plaintiffs seeks a 60-day extension of time to accomplish service
of the summons and complaint upon five Defendants and for the Court to direct that service be
effected by a United States marshal, deputy United States marshal, or other person or officer
specially appointed by the court for that purpose. No responses have been filed.
Plaintiff filed his pro se complaint on November 16, 2015.1 On May 16, 2016, District
Judge Sam A. Crow issued an order dismissing certain Defendants and a portion of Plaintiff’s
claims.2 Judge Crow also ordered the Clerk’s office to prepare and mail waiver of service forms
for several Defendants including Shmucker, Lansaw, and Leonard Mattox, but did not order
service on the Defendants labeled in the complaint as van driver and van passenger until Plaintiff

1

ECF No. 1. The court later appointed counsel for Plaintiff, but appointed counsel has not
sought leave to file an amended complaint. See ECF No. 63 (June 8, 2017 order appointing
counsel).  
2

ECF No. 6.

1

was able to identify them by name.3 To date, the waivers of service on Defendants Shmucker,
Lansaw, and Mattox were all returned unexecuted, as was an alias summons served on Mattox.4
Plaintiff’s motion states that no counsel in this action has been able to identify the van passenger
or driver. As a result, Defendants Maddox, Shmucker, Lansaw, and the unidentified van driver
and passenger have not been served with summons and Plaintiff’s complaint.
Plaintiff concedes that he has exceeded the time allowed by Federal Rule of Civil
Procedure 4(m) to serve these five Defendants.5 However, he relies on the language in Rule
4(m) which provides that “if the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.”6 He argues good cause exists for his failure to
comply in that he was incarcerated and without counsel until the court appointed counsel, and
that since then an incomplete factual record and confidentiality have prevented counsel from
learning these Defendants’ whereabouts. Plaintiff contends that even if he cannot establish good
cause, the Court has discretion to grant an extension of the 120-day deadline.7 He argues the
Court should do so because no Defendant would be prejudiced by the extension, and that if

3

Id.

4

See ECF Nos. 7, 28, 37, 38, 45, and 47.

5

 Plaintiff states that Rule 4(m) contains a 120-day deadline for service. The rule was amended
effective December 1, 2015, to reduce the time for service to 90 days. However, because
Plaintiff filed his complaint on November 16, 2015, the 120-day provision continues to apply.
See D. Kan. Standing Order No. 15-02 (“It is hereby ordered that the 90-day time period for
effecting service under Fed. R. Civ. P. 4(m) shall apply to all cases filed on or after December 1,
2015; and it is further ordered that this amendment to Fed. R. Civ. P. 4(m) shall not apply to
cases already pending as of December 1, 2015.”).

6

 Fed. R. Civ. P. 4(m).

7

 See Taylor v. Osawatomie State Hosp., No. 07-2346-KHV, 2008 WL 474417, at *1 (D. Kan.
Feb. 19, 2008).

2

dismissed he would be barred by the statute of limitations from refiling his claims against these
five Defendants.
Because Plaintiff has been unable to locate and serve the five Defendants at issue, he also
seeks an order directing the U.S. marshal or another specially appointed individual to serve the
five Defendants pursuant to Fed. R. Civ. P. 4(c)(2). The rule provides in relevant part as follows:
Service may be effected by any person who is not a party and who is at least 18 years
of age. At the request of the plaintiff, however, the court may direct that service be
effected by a United States marshal, deputy United States marshal, or other person or
other person or officer specially appointed by the court for that purpose. Such an
appointment must be made when the plaintiff is authorized to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915 or is authorized to proceed as a seaman under
28 U.S.C. § 1916.8
Plaintiff is prepared to pay the personal service fee associated with service.
With regard to Plaintiff’s request for an extension of time to serve Defendant, the Court
finds that Plaintiff has shown good cause for such an extension. However, Plaintiff admittedly
does not know the whereabouts of Defendants Lansaw, Shmucker, or Leonard Maddox, nor does
he know the identity of the van driver or passenger. Without the information necessary to effect
service, giving Plaintiff another 60 days to serve would not put him in any better position than he
is right now. Perhaps Plaintiff mistakenly believes that if the Court were to grant his motion and
direct the U.S. marshal to serve, the marshal would have resources to locate the named
Defendants and would investigate the identities of the van driver and passenger. That is not the
case. When ordered to serve process in civil actions, the Marshals Service requires a current
address for each person to be served; without it, the service papers would be returned

8 

Fed. R. Civ. P. 4(c)(2).
3

unexecut
ted. As Judg Crow not
ge
ted, it is Pla
aintiff’s duty to ascertain the identity and location of
y
n
y
the van driver and pa
d
assenger if he intends to pursue his c
claims agains them.9
st
Given the circumstances of this case, the Cou will deny Plaintiff’s motion wi
G
s
urt
y
s
ithout
prejudice If Plaintif is able to discover the whereabou of Defen
e.
ff
e
uts
ndants Lansa Shmucker, or
aw,
Leonard Maddox th
hrough form discovery or other means, he may renew the motion If
mal
y
n.
Plaintiff is able to ide
entify and lo
ocate the van driver and p
n
passenger, h may renew the motion
he
w
n.
IT IS THER
T
REFORE ORDERED THAT Pl
O
D
laintiff’s M
Motion for L
Leave to Ex
xtend
Deadline to Effect Service on Defendants Maddox, Shm
e
S
D
M
hmucker, Lan
nsaw, and T
Two Uniden
ntified
Defendan (ECF No 80) is DEN
nts
o.
NIED WITH
HOUT PREJU
UDICE.
IT IS SO OR
T
RDERED.
Dated: Janua 26, 2018
D
ary

T
Teresa J. Jam
mes
U S. Magist
U.
trate Judge

9

 See ECF No. 6 at 20  
F
0.

4