Bannister v. Commissioner of Social Security

Filing 8

ORDER VACATING SHOW CAUSE AND ORDER SETTING DEADLINE FOR SERVICE: The Order to Show Cause issued 06/11/2013 is vacated.The time for the plaintiff to serve the defendant with a summons and the complaint as required by Rule 4 (i)(1) and (2) is extended until 07/31/2013. Signed by Magistrate Judge Stephen C. Riedlinger on 06/28/2013. (CGP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ARMINEA BANNISTER
CIVIL ACTION
VERSUS
NUMBER 12-744-BAJ-SCR
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
ORDER VACATING SHOW CAUSE ORDER AND
SETTING DEADLINE FOR SERVICE
Plaintiff was ordered to show cause in writing on June 21,
2013 why her complaint should not be dismissed for failure to
properly serve the defendant within the time allowed by Rule 4(m),
Fed.R.Civ.P.1
The response to the show cause order indicates two reasons for
the lack of service.2

Counsel for the plaintiff explained that

after the Motion to Proceed In Forma Pauperis was granted, counsel
proceeded in accordance with 28 U.S.C. § 1915 and prepared Form 285
for each person to be served, and on December 17, 2012 forwarded
the forms by mail to the U.S. Marshal’s Office.3

After mailing the

forms counsel believed that no further action was required to
effect service.
unable

to

work

Shortly thereafter, counsel became ill and was
for

several

months.

For

1

Record document number 6.

2

Record document number 7.

3

Record document number 7-1, Exhibit A.

these

reasons,

the

plaintiff urged the court to find good cause for the failure to
timely serve the defendant, or in the alternative, asked for a
discretionary extension of time to effect service.
With regard to mailing the Form 285 to the U.S. Marshal to
effect service, it is apparent that counsel failed to take note
that

the

order

granting

leave

to

proceed

in

forma

pauperis

specifically stated in bold type that the plaintiff is responsible
for serving the defendant in the manner required by Rule 4,
Fed.R.Civ.P.4

In Social Security cases where in forma pauperis

status is granted and the plaintiff is represented by counsel, this
procedure is followed because service can be accomplished simply by
mailing the summons and complaint to the appropriate government
officials and delivering a copy to the United States Attorney for
the district, as provided under Rule 4(i).5

A Form 285 is not

needed.
Nevertheless, this misunderstanding combined with counsel’s
illness constitute good cause for the plaintiff’s failure to timely
serve the defendant, and for extending the time for the plaintiff
to effect service under Rule 4(m).6

4

Record document number 3.

5

The time and cost for the plaintiff is minimal and this
procedure helps relieve the administrative burdens on the U.S.
Marshal’s Office.
6

See, Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996);
Newby v. Enron Corp., 284 Fed.Appx. 146 (5th Cir. 2008).
2

Therefore;
IT IS ORDERED that the Order to Show Cause issued June 11,
2013 is vacated.
IT IS FURTHER ORDERED that the time for the plaintiff to serve
the defendant with a summons and the complaint as required by Rule
4(i)(1) and (2) is extended until July 31, 2013.
Baton Rouge, Louisiana, June 28, 2013.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

3