Evans v. Daly et al

Filing 9

ORDER to waive service of summons. Signed by Magistrate Judge Jeremiah C. Lynch on 6/22/2018. (APP) Copy to Evans and copies of order/attachments to Daly and Diehl

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
ANTHONY L. EVANS,

CV 18-00026-BU-BMM-JCL

Plaintiff,
ORDER
vs.
SEAN DALY and ERIN DIEHL,
Defendants.
Plaintiff Anthony Evans filed a response to the Court’s May 10, 2018 Order
clarifying his claims against the named Defendants. (Doc. 8.) The Court has
considered whether Evans’s Complaint (Doc. 2) is frivolous, malicious, fails to
state a claim, or seeks solely monetary relief from a defendant who is immune.
See 28 U.S.C. §§ 1915(e)(2), 1915A(b). It has also considered whether Evans has
a reasonable opportunity to prevail on the merits. See 42 U.S.C. § 1997e(g).
Dismissal is not appropriate at this time. Defendants must respond to the
Complaint. See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be
permitted to “waive the right to reply to any action brought by a prisoner confined
in any jail, prison, or other correctional facility under section 1983,” once the
Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2)
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and § 1915A(b), and thus, has made a preliminary determination based on the face
on the pleading alone that plaintiff has a “reasonable opportunity to prevail on the
merits,” Defendant is required to respond).
Based on the foregoing, the Court issues the following:
ORDER
1. Pursuant to Fed. R. Civ. P. 4(d), the Court will request Defendants to
waive service of summons of the Complaint by executing, or having counsel
execute, the Waiver of Service of Summons. The Waiver must be returned to the
Court within 30 days of the entry date of this Order as reflected on the Notice of
Electronic Filing. If Defendants choose to return the Waiver of Service of
Summons, their answer or appropriate motion will be due within 60 days of the
entry date of this Order as reflected on the Notice of Electronic Filing, pursuant to
Fed. R. Civ. P. 12(a)(1)(B). See also 42 U.S.C. § 1997e(g)(2).
2. The Clerk of Court shall mail the following documents to:
Sean Daly
Erin Diehl
Bozeman Adult Probation and Parole
2273 Boot Hill Ct #130
Bozeman, MT 59715
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Complaint (Doc. 1);
Order dated May 10, 2018 (Doc. 6);
May 21, 2018 Response to Order (Doc. 8);
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this Order;
a Notice of Lawsuit & Request to Waive Service of Summons; and
a Waiver of Service of Summons.

Counsel for Defendants must file a “Notice of Appearance” as a separate
document at the time an Answer or Rule 12 motion is filed. See D. Mont. L.R.
12.2.
3. Any party’s request that the Court grant relief, make a ruling, or take an
action of any kind must be made in the form of a motion, with an appropriate
caption designating the name of the motion, served on all parties to the litigation,
pursuant to Federal Rules of Civil Procedure 7, 10, and 11. If a party wishes to
give the Court information, such information must be presented in the form of a
notice. The Court will not consider requests made or information presented in
letter form.
4. Evans shall not make any motion for default until at least 70 days after
the date of this Order.
5. Pursuant to Local 26.1(d) “no party may begin discovery until a
scheduling order has been issued.”
6. At all times during the pendency of this action, Evans must immediately
advise the Court and opposing counsel of any change of address and its effective
date. Failure to file a Notice of Change of Address may result in the dismissal of
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the action for failure to prosecute pursuant to Fed.R.Civ.P. 41(b).
DATED this 22nd day of June, 2018.

/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
ANTHONY L. EVANS,

CV 18-00026-BU-BMM-JCL

Plaintiff,
Rule 4 Notice of a Lawsuit and
Request to Waive Service of
Summons

vs.
SEAN DALY and ERIN DIEHL,
Defendants.
TO: Sean Daly
Erin Diehl
Bozeman Adult Probation and Parole
2273 Boot Hill Ct #130
Bozeman, MT 59715

A lawsuit has been filed against you in this Court under the number shown
above. A copy of the Complaint and supporting documents is attached.
This is not a summons, or an official notice from the court. It is a request
that, to avoid the cost of service by the U.S. Marshal’s Service, you waive formal
service of a summons by signing and returning the enclosed waiver. To avoid
these expenses, you must file the signed waiver within 30 days from the date
shown below, which is the date this notice was sent.
If you file the signed waiver, the action will then proceed as if you had been
served on the date the waiver is filed, but no summons will be served on you and
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you will have 60 days from the date this notice is sent (see the date below) to
answer the Complaint.
If you do not return the signed waiver within the time indicated, the Court
will order the U.S. Marshal’s Service to serve the summons and Complaint on you
and may impose the full costs of such service.
Please read the statement below about the duty to avoid unnecessary
expenses.
DATED this 22nd day of June, 2018.
/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge
Duty to Avoid Unnecessary Expenses of Serving a Summons
Rule 4 of the Federal Rules of Civil Procedure requires certain defendants
to cooperate in saving unnecessary expenses of serving a summons and complaint.
A defendant who is located in the United States and who fails to return a signed
waiver of service requested by a plaintiff located in the United States will be
required to pay the expenses of service, unless the defendant shows good cause for
the failure.
“Good cause” does not include a belief that the lawsuit is groundless, or that
it has been brought in an improper venue, or that the court has no jurisdiction over
this matter or over the defendant or the defendant’s property.
If the waiver is signed and returned, you can still make these and all other
defenses and objections, but you cannot object to the absence of a summons or of
service.
If you waive service, then you must, within the time specified on the waiver
form, serve an answer or a motion under Rule 12 on the plaintiff and file a copy
with the court. By signing and returning the waiver form, you are allowed more
time to respond than if a summons had been served.
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
ANTHONY L. EVANS,

CV 18-00026-BU-BMM-JCL

Plaintiff,
Rule 4 Waiver of Service of
Summons

vs.
SEAN DALY and ERIN DIEHL,
Defendants.

TO: The U.S. District Court for the District of Montana
The following Defendants acknowledge receipt of your request to waive
service of summons in this case. Defendants also received a copy of the
Complaint and supporting documents. I am authorized by the following
Defendants to agree to save the cost of service of a summons and an additional
copy of the Complaint in this action by not requiring that the following individual
be served with judicial process in the case provided by Fed.R.Civ.P. 4:
________________________________; ________________________________;
The above-named Defendants understand that they will keep all defenses or
objections to the lawsuit, the Court’s jurisdiction, and the venue of the action, but
waive any objections to the absence of a summons or of service.
Defendants also understand that they must file and serve an answer or a
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motion under Rule 12 within 60 days from the date when the Request for Waiver
of Service of Summons was filed and if they fail to do so default judgment will be
entered against them.

Date: _________________________

______________________________
(Signature of the attorney
or unrepresented party)

______________________________
(Printed name)

______________________________
(Address)

______________________________
(E-mail address)

______________________________
(Telephone number)

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