Krych v. DHS MSOP-ML, April 6, 2011, Client Placement Committee members and participants et al

Filing 85

ORDER granting 32 Motion to Postpone or Reschedule the Pretrial Scheduling Order ; denying as moot 53 Motion to Unstay Lawsuit. (Written Opinion) Signed by Magistrate Judge Dulce J. Foster on 10/7/2022. (JC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 11-cv-3091 (JRT/DJF)

Chris Krych,
Plaintiff,

ORDER

v.
DHS MSOP-ML, April 6, 2011, Client
Placement Committee Members and
Participants, et al.,
Defendants.

Not long after this action was filed in 2011, a stay was imposed in this matter pending the
disposition of Karsjens v. Minnesota Department of Human Services, No. 11-cv-3659
(DWF/TNL) (ECF No. 31). The stay was lifted on October 3, 2022 (ECF No. 82). This matter
is now before the Court on two motions brought by Plaintiff Chris Krych: a Motion to Postpone
or Reschedule the Pretrial Scheduling Order (“Motion to Postpone or Reschedule”) (ECF No. 32),
and a Motion to Unstay this matter (“Motion to Unstay”) (ECF No. 53). 1 The Motion to Unstay
is denied as moot, because Plaintiff received the relief requested when the Court lifted the stay in
this case. For the reasons set forth below, the Court grants Plaintiff’s Motion to Postpone or
Reschedule.
On December 29, 2011, Plaintiff filed a document labeled “Amended Complaint” (ECF
No. 26). At that time, Mr. Krych was entitled to file an amended complaint as a matter of course,
without the Court’s leave. See Fed. R. Civ. P. 15(a)(1). The new pleading is not a proper amended

1

Also pending is a motion for a temporary restraining order that Plaintiff filed at the outset
of this action. (See ECF No. 7.) That motion was addressed in a separate Report and
Recommendation (ECF No. 84).

1

complaint, however, but is instead a supplement to the original Complaint (ECF No. 1). Rather
than setting forth each claim for relief against each defendant, the Amended Complaint merely
adds defendants and factual allegations, and seeks to incorporate the original Complaint by
reference.
As a general matter, this is not permitted under the Local Rules of this District. See D.
Minn. L.R. 15.1(a) (“Unless the court orders otherwise, any amended pleading must be complete
in itself and must not incorporate by reference any prior pleading.”). But an Answer has already
been filed in response to the Amended Complaint (ECF No. 28). Defendants appear to regard the
new allegations raised in the Amended Complaint as operative alongside the allegations in the
original Complaint, and the Court will do the same: Both the original Complaint (ECF No. 1) and
the Amended Complaint (ECF No. 26) will serve jointly as the operative pleading in this matter
going forward. If Mr. Krych seeks to amend the pleading again in the future, then leave of the
Court will be necessary. See Fed. R. Civ. P. 15(a)(2).
In his Motion to Postpone or Reschedule (ECF No. 32), Plaintiff moved the Court to
postpone the Pretrial Scheduling Order filed January 20, 2012 (ECF No. 29) until after the
additional defendants named in the Amended Complaint are served with the Complaint and
Amended Complaint and file an answer or otherwise respond. (ECF No. 32 ¶ 3.) Since the original
Pretrial Scheduling Order was set more than a decade ago and the deadlines it established are long
passed, the Pretrial Scheduling Order necessarily must be amended. Moreover, the Court agrees
that pretrial discovery should not begin until all defendants have been served and have had an
opportunity to answer or otherwise respond.
The docket indicates that service of process has not yet been effected on any of the
defendants who were named for the first time in the Amended Complaint, but not in the initial

2

complaint (James Olson, Barry Anderson, Thane Murphy, Denise Reed, Dale Olbekson, Tony
Blauert, and Eric Skon). The Court will therefore order that service of process be effected upon
those defendants consistent with 28 U.S.C. § 1915(d) and Rule 4 of the Federal Rules of Civil
Procedure. The Court will also grant Plaintiff’s Motion to Postpone or Reschedule and will issue
an amended pretrial scheduling order after those defendants have had an opportunity to answer or
otherwise responded to the operative pleading (the Complaint and the Amended Complaint).
However, Plaintiff must properly complete and return the Marshal Service Forms sent to
him for the defendants newly-named in the Amended Complaint by November 7, 2022. If
Plaintiff fails to submit properly completed Marshal Service Forms by November 7, 2022, the
Court will recommend dismissing these defendants from this matter for failure to prosecute and
will issue an amended pretrial scheduling order at that time.

ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.

Plaintiff’s Motion to Unstay (ECF No. [53]) is DENIED AS MOOT.

2.

Plaintiff’s Motion to Postpone or Reschedule (ECF No. [32]) is GRANTED.

3.

Plaintiff must submit properly completed Marshal Service Forms (Form USM-285)
for defendants James Olson, Barry Anderson, Thane Murphy, Denise Reed, Dale
Olbekson, Tony Blauert, and Eric Skon. If Plaintiff does not complete and return
the Marshal Service Forms by November 7, 2022, it will be recommended that
these defendants be dismissed from this matter without prejudice for failure to
prosecute. Marshal Service Forms will be provided to Plaintiff by the Court.

3

4.

If Plaintiff submits properly completed Marshal Service Forms by November 7,
2022, the Court will issue an amended pretrial scheduling order when the newlynamed defendants answer or otherwise respond, or the deadline for them to answer
or respond has passed. If Plaintiff does not properly submit Marshal Service Forms
for the newly-named defendants by November 7, 2022, the Court will issue an
amended pretrial scheduling order at that time.

5.

After the return of the completed Marshal Service Forms, the Clerk of Court shall
seek waiver of service from defendants James Olson, Barry Anderson, Thane
Murphy, Denise Reed, Dale Olbekson, Tony Blauert, and Eric Skon in their
individual capacities, consistent with Rule 4(d) of the Federal Rules of Civil
Procedure.

5.

If a defendant sued in his or her personal capacity fails without good cause to sign
and return a waiver within 30 days of the date that the waiver is mailed, the Court
will impose upon that defendant the expenses later incurred in effecting service of
process. Absent a showing of good cause, reimbursement of the costs of service is
mandatory and will be imposed in all cases in which a defendant does not sign and
return a waiver of service form. See Fed. R. Civ. P. 4(d)(2).

6.

The U.S. Marshals Service is directed to effect service of process on defendants
James Olson, Barry Anderson, Thane Murphy, Denise Reed, Dale Olbekson, Tony
Blauert, and Eric Skon in their official capacities as agents of the State of Minnesota
consistent with Rule 4(j) of the Federal Rules of Civil Procedure. Service of
process shall include a summons and a copy of both the Complaint (ECF. No. [1])
and the Amended Complaint (ECF. No. [26]).

4

Dated: October 7, 2022

s/ Dulce J. Foster______________________
Dulce J. Foster
United States Magistrate Judge

5