Popescu v. Shubow

Filing 9

Judge Richard G. Stearns: ORDER entered. The motion to amend is GRANTED. The Clerk shall docket the proposed amended complaint as the amended complaint. The Clerk shall reissue the summons. Unless Popescu timely obtains a waiver of service from the defendant, service must be completed no later Monday, March 5, 2018. [mailed to plaintiff on 1/22/18.](PSSA, 3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 17-12388-RGS
OSHEA M. POPESCU
v.
JONATHAN SHUBOW
ORDER
January 22, 2018
STEARNS, D.J.
For the reasons stated below, the court (1) allows the plaintiff’s
motion to file an amended complaint; and (2) directs the plaintiff to
complete service.
I.

BACKGROUND
On December 4, 2017, pro se litigant Oshea Popescu, who resides in

North Carolina, commenced this action against Jonathan Shubow, a
Massachusetts resident. Popescu paid the filing fee, and a summons issued
the day the after the complaint was filed.
On January 9, 2018, Popescu filed a request for a notice of default,
representing that more than twenty-one days had expired since the
complaint had been filed and that the defendant had failed to answer. In

response to that request, the court entered an order stating that Popescu
had failed to file proof of service.
On January 19, 2018, Popescu filed a motion to amend her complaint.
She also states therein that she was under the “wrong impression” that
service would be executed by the United States Marshals Service (“USMS”).
II.

Discussion
A.

Motion to Amend

Because Popescu may amend her complaint as matter of right, see
Fed. R. Civ. P. (a)(1) (providing that a party may amend its pleading once as
a matter of course within a given time frame), the court will grant the
motion to amend her complaint.

The Clerk shall docket the proposed

amended complaint as the amended complaint. 1
B.

Service of Summons

It is not the practice of this court to order the USMS to complete
service of summons in an action brought by a pro se plaintiff who has paid
the filing fee. Where the court authorizes a plaintiff to proceed in forma
pauperis, the court must also order that “service be made by a United
In future filings, Popescu should ensure that the captions of her
documents reflect that this action is proceeding in federal court. In the
headings, should replace “Commonwealth of Massachusetts” with “United
States District Court for the District of Massachusetts.” References to
“Superior Court” and “Suffolk, SS” are to be deleted; the case caption
should contain “Civil Action No. 17—12388-RGS.”
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States marshal or deputy marshal or by a person specially appointed by the
court,” even if the party is represented by counsel. Fed. R. Civ. P. (c)(e). In
some circumstances, especially in cases with numerous defendants, a
plaintiff is able to pay the filing fee but cannot afford to pay the cost of
service. Any such plaintiff may file a motion for leave to proceed in forma
pauperis, notwithstanding that she or he has paid the filing fee, and ask
that the Court order the USMS to complete service, with all costs of service
to be advanced by the United States.
Here, there is no basis for the court to order service by the USMS.
Popescu paid the filing fee and has not asked for an order requiring the
USMS to complete service.

In addition, the court does not have any

information about her financial situation.

See 28 U.S.C. § 1915(a)

(providing that person seeking leave to proceed without prepayment of fees
and costs must file an affidavit that includes a statement of “all assets” of
the applicant). Further, there is only one defendant in this action. Finally,
Popescu may try to avoid paying the filing fee by asking the defendant to
waive service of the summons. See Fed. R. Civ. P. 4(d). 2

The forms for seeking a waiver of service of summons (Notice of Lawsuit
and Request for Waiver of Service of Summons) and for seeking in forma
pauperis (Application to Proceed in District Court Without Prepaying Fees
or Costs) status may be found on the court’s web site:
http://www.mad.uscourts.gov/general/prose-litigants.htm.
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Unless Popescu obtains a waiver of service from the defendant, she is
responsible for arranging service of the summons and the complaint on the
defendant in accordance with Rule 4 of the Federal Rules of Civil
Procedure:
(e) Serving an Individual Within a Judicial District of
the United States. Unless federal law provides otherwise, an
individual—other than a minor, an incompetent person, or a
person whose waiver has been filed—may be served in a judicial
district of the United States by:
(1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the
district court is located or where service is made[3]; or
(2) doing any of the following:
(A) delivering a copy of the summons and of
the complaint to the individual personally;
(B) leaving a copy of each at the individual's
dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or

Under Rule 4 of the Massachusetts Rules of Civil Procedure, service can
be made

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[u]pon an individual by delivering a copy of the summons and
of the complaint to him personally; or by leaving copies thereof
at his last and usual place of abode; or by delivering a copy of
the summons and of the complaint to an agent authorized by
appointment or by statute to receive service of process,
provided that any further notice required by such statute be
given.
Mass. R. Civ. P. 4(d)(1).
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(C) delivering a copy of each to an agent
authorized by appointment or by law to receive
service of process.
Fed. R. Civ. P. 4(e). Service may be completed by “[a]ny person who is at
least 18 years old and not a party.” Fed. R. Civ. P. (c)(2).
III. CONCLUSION
Accordingly:
1.

The motion to amend is GRANTED. The Clerk shall docket the

proposed amended complaint as the amended complaint.
2.

The Clerk shall reissue the summons.

3.

Unless Popescu timely obtains a waiver of service from the

defendant, service must be completed no later Monday, March 5, 2018.
Proof of service or of a waiver must be promptly filed once service is
complete or the waiver is received. Unless the court enlarges the time to
complete service, see Fed. R. Civ. P. 4(m), failure to complete service by this
deadline may result in dismissal of this action without prejudice, see id.,
Local Rule 4.1.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE

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