Smith v. Performance Contractors, Inc.
ORDER denying 10 Motion to Dismiss. Signed by District Judge Carlton W. Reeves on 04/06/2017. (NM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
BILLY J. SMITH
CAUSE NO. 3:16-CV-00902-CWR-LRA
PERFORMANCE CONTRACTORS, INC.
Before the Court is the defendant’s motion to dismiss for insufficiency of service of
process. Docket No. 10. The motion is denied for the reasons stated below.
This action was instituted in the United States District Court for the Northern District of
Mississippi, where the plaintiff filed a motion to appoint counsel and to proceed to in forma
pauperis (IFP). Docket No. 1. On October 13, 2016, Magistrate Judge David Sanders granted
the plaintiff IFP status, but denied his motion to appoint counsel. Docket No. 4. The complaint
was filed that same day. Docket No. 5.
The case was transferred, sua sponte, to this Court a little over a month later. Docket No.
8. On February 21, 2017, the defendant filed this motion to dismiss, asserting that it had not
been served with process. The plaintiff, acting pro se, has responded. Docket No. 12.
Ordinarily, a plaintiff must serve process upon the defendant within 90 days after filing
the complaint or risk dismissal. Fed. R. Civ. P. 4(m). It is undisputed that timely service has not
been effected in this action. But the plaintiff’s IFP status triggered special procedural rules. See
28 U.S.C. § 1915(d).
“[O]nce [an] IFP plaintiff has taken reasonable steps to identify the defendant(s), together
Rule 4 and 28 U.S.C. § 1915 require the court to issue plaintiff’s process to a United States
Marshal who must in turn effectuate service upon the defendants.” Howard v. Shelton, 277
F.R.D. 168, 171 (S.D. Miss 2011).
The Magistrate Judge ordered the Marshals Service to serve process upon the defendant
at the address provided in the complaint. Docket No. 4. Although the Clerk issued process,
there is no indication in the record that the Marshals Service ever attempted to serve the
defendant. See Docket No. 6. Consequently, the fact that the defendant has not been served does
not appear to be the plaintiff’s fault, so he should not be penalized. See Sanchez v. Perez, 96 F.3d
1445, 1445 (1996).
Accordingly, the motion to dismiss is denied. Rule 4(m)’s 90-day period will start anew
from April 10, 2017. Since the defendant has appeared in this matter through counsel and
counsel has notice of the complaint, the defendant may waive his right to formal service of
process. See Fed. R. Civ. P. 12(h). Waiving service would allow this case to proceed without
any undue delay and without expense to the government. If the defendant agrees to waive
service, it shall inform the Court and the plaintiff by filing a notice of the waiver with service to
the plaintiff on or before Monday, April 10, 2017. Under those circumstances, the defendant
shall then file its answer or responsive pleading on or before May 10, 2017.
If the defendant elects not to waive its right to be served with the summons and
complaint, the Clerk of the Court is directed to issue process on or after April 11, 2017, for the
defendant in this case, whose last known address can be found in the complaint. See Docket No.
5. The United States Marshals Service shall then serve process upon the defendant pursuant to
28 U.S.C. § 1915(d).
SO ORDERED, this the 6th day of April, 2017.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
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