Coyne et al v. Parkside Credit Union et al

Filing 10

FINDINGS AND RECOMMENDATIONS AND ORDER re 2 Complaint IFP/Prisoner filed by Morgan Coyne, Kevin Pearson. It is recommended that Plaintiffs claims against Innovis Data Solutions be dismissed without prejudice for failure to timely serve. It is fu rther ordered that Plaintiffs shall have until January 6, 2025, to file proof that Experian, Equifax, Trans Union, and Parkside Credit Union have been served with a summons and copy of the Complaint in accordance with Rule 4 of the Federal Rules of Civil Procedure. Signed by Magistrate Judge Kathleen L. DeSoto on 11/20/2024. (HMJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

MORGAN COYNE and KEVIN W.
PEARSON,

CV 24-14-M-DLC-KLD

Plaintiffs,

FINDINGS AND
RECOMMENDATION

vs.

PARKSIDE CREDIT UNION,
EXPERIAN CORP., EQUIFAX,
TRANSUNION, and INNOVIS DATA
SOLUTIONS,

and
ORDER

Defendants.
Plaintiffs Morgan Coyne and Kevin W. Pearson, both of whom are
proceeding pro se, lodged a Complaint against the above-named Defendants on
January 19, 2024 (Doc. 2), and paid the associated filing fee on June 28, 2024.
On July 17, 2024, the Court issued an order advising Plaintiffs that they
“shall be responsible for serving each named Defendant with a summons and copy
of the complaint (Doc. 2) in accordance with Rule 4 of the Federal Rules of Civil
Procedure.” (Doc. 6). Fed. R. Civ. P. 4(m) requires that a plaintiff serve a
complaint and summons within 90 days after the complaint is filed. Taking July
17, 2024, as the start of the 90-day service period, Plaintiffs were required to serve
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Defendants by October 15, 2024. (Doc. 8 at 3).
As of October 17, 2024, there was no indication in the record that Plaintiffs
had asked the Clerk’s Office to issue summonses or taken any other steps towards
accomplishing service. (Doc. 8). The Court therefore issued a show cause order
giving Plaintiffs until November 14, 2024, to show good cause for failing to timely
serve each Defendant with a summons and copy of the Complaint. (Doc. 8).
On October 30, 2024, Plaintiffs filed a document titled “Proof of Service”
and attached four U.S. Postal Service Certified Mail Receipts addressed to (1)
Experian at a P.O. Box in Allen, Texas; (2) Parkside Credit Union at a street
address in Whitefish, Montana; (3) Equifax at a P.O. Box in Atlanta, Georgia; and
(4) TransUnion at a P.O. Box in Chester, Pennsylvania. (Doc. 9). These certified
mail receipts are insufficient to establish that Defendants have been served in
accordance with the requirements of Rule 4 of the Federal Rules of Civil
Procedure.
Federal Rule of Civil Procedure 4(d)(1) allows a plaintiff to notify a
“defendant that an action has been commenced and request that the defendant
waive service of a summons,” and lists the requirements that such a notice and
request must meet. Fed. R. Civ. P. 4(d)(1)(A)-(G). “Unless service is waived, proof
of service must be made to the court. Except for service by a United States marshal
or deputy marshal, proof must be made by the server’s affidavit.” Fed. R. Civ. P.
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4(l).
Under all methods of service described in Rule 4 of the Federal Rules Civil
Procedure, “[a] summons must be served with a copy of the complaint.” Fed. R.
Civ. P. 4(c)(1). The requirements for serving a corporation, partnership, or
association are set forth in Federal Rule of Civil Procedure 4(h). Unless federal law
provides otherwise or the defendant’s waiver has been filed, a corporation in a
judicial district of the United States must be served in one of two ways:
(A)

in the manner prescribed by Rule 4(e)(1) for serving an
individual; or

(B)

by delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process and—if the agent is one authorized by statute and the
statute so requires—by also mailing a copy of each to the
defendant[.]

Fed. R. Civ. P. 4(h)(1). Federal Rule of Civil Procedure 4(e)(1) in turn provides
that an individual may be served in a judicial district of the United States by
“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[.]” Fed. R. Civ. P. 4(e)(1).
Under Montana law, a “corporation, partnership, or other unincorporated
association” may not be served by mail. Mont. R. Civ. P. 4(d)(3)(B)(iii). Rule 4(i)
of the Montana Rules of Civil Procedure provides several methods for effecting
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service on a business, including:
(A) delivering a copy of the summons and complaint to: (i) an officer; (ii) a
director; (iii) a manager; (iv) a member of a member-managed limited
liability company; (v) a superintendent; (vi) a managing agent; (vii) a
general agent; or (viii) a partner;
(B) leaving copies of the summons and complaint at the office or place of
business within Montana with the person in charge of such office; [or]
(C) delivering a copy of the summons and complaint to the registered agent
named on the records of the secretary of state[.]
Mont. R. Civ. P. 4(i)(3)(B). Consistent with Federal Rule of Civil Procedure 4, the
methods described in Montana Rule of Civil Procedure 4(i) require service of both
a summons and complaint.
Here, Plaintiffs have not provided any evidence of an attempt to serve
Innovis Data Solutions, and the certified mail receipts they have submitted are
insufficient to establish that Experian, Equifax, TransUnion, and Parkside Credit
Union have been properly served. Plaintiffs have not filed a waiver of service as to
any Defendant, and review of the docket shows that no summonses have been
issued or returned. The certified mail receipts do not demonstrate that Plaintiffs
have delivered a copy of a summons and the Complaint to an officer or authorized
agent of Experian, Equifax, TransUnion, or Parkside Credit Union as required by
Federal Rule of Civil Procedure 4(h)(1), nor do they establish that Plaintiffs have
completed service as allowed by Montana law.
In light of Plaintiffs’ pro se status, the Court will provide Plaintiffs an
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additional 45 days to properly effect service on Experian, Equifax, TransUnion,
and Parkside Credit Union in accordance with Rule 4 of the Federal Rules of Civil
Procedure. For additional guidance, Plaintiffs may refer to Section IV of the
Court’s Guide for Unrepresented Parties, available on the Court’s website at
https://www.mtd.uscourts.gov/guide-unrepresented-parties-filing-district-montana.
Because Plaintiffs have not shown good cause for failing to even attempt
service on Innovis Data Solutions, Plaintiffs’ claims against Innovis Data Solutions
should be dismissed without prejudice for failure to complete service within the
90-day period provided for in Federal Rule of Civil Procedure Rule 4(m).
Finally, the Court takes this opportunity to note that although Plaintiff
Morgan Coyne personally signed the “Proof of Service” filed on October 30, 2024,
Plaintiff Kevin Pearson did not do so. (Doc. 9 at 2). Rule 11 of the Federal Rules
of Civil Procedure requires that “[e]very pleading, written motion, and other paper
must be signed … by a party personally if the party is unrepresented.” Fed. R. Civ.
P. 11(a). See also, Simon v. Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir.
2008) (a plaintiff proceeding pro se cannot represent others). The Court has
previously advised Plaintiffs that because they are proceeding pro se, both of them
must personally sign all motions and filings in the case. (Doc. 5 at 2).
In response to that Order, Plaintiffs filed a “Durable Power of Attorney for
Health Care” reflecting that Pearson has designated Coyne as his attorney-in-fact
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for the purpose of making medical decisions on his behalf, and an “Acceptance of
Power of Attorney” signed by Coyne acknowledging those responsibilities. (Doc.
7-1). The Ninth Circuit has held that a power of attorney does not confer authority
to a non-lawyer to represent another party in court. Johns v. County of San Diego,
114 F.3d 874, 876 (9th Cir. 1997).
The power of attorney forms filed by Plaintiffs do not give Coyne the
authority to represent Pearson in this litigation, and so do not relieve Pearson of his
obligation to personally sign all filings in this case. See e.g. Terra Libre Land Trust
v. Wells Fargo Bank, 2022 WL 1404648, at *1 (W.D. Wash. May 4, 2022);
Tangwall v. Satterberg, 2020 WL 8572407, at *1 n.3 (D. Alaska Dec. 31, 2020).
Plaintiffs are cautioned that if Pearson fails to personally sign all future filings in
this case, his claims may be dismissed without prejudice for failure to comply with
Federal Rule of Civil Procedure 11(a) and the Court’s orders pursuant to Federal
Rules of Civil Procedure 41(b).
For the reasons discussed above,
IT IS ORDERED that:
(1) Plaintiffs shall have until January 6, 2025, to file proof that Experian,
Equifax, TransUnion, and Parkside Credit Union have been served with a
summons and copy of the Complaint in accordance with Rule 4 of the Federal
Rules of Civil Procedure. Plaintiffs are advised that if they do not provide proof of
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service by January 6, 2025, their Complaint may be dismissed without prejudice
for failure to comply with Rule 4(m) and for failure to prosecute pursuant to Rule
41(b) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED Plaintiffs must immediately notify the Court
of any change in their mailing address by filing a “Notice of Change of Address.”
Failure to do so may result in dismissal of this case without notice to them.
Additionally,
IT IS RECOMMENDED that Plaintiffs’ claims against Innovis Data
Solutions be dismissed without prejudice for failure to complete service within the
90-day period provided for in Federal Rule of Civil Procedure Rule 4(m).
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve a copy of
the Findings and Recommendation of the United States Magistrate Judge upon the
parties. The parties are advised that pursuant to 28 U.S.C. § 636, any objections to
the findings and recommendations must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after entry hereof, or
objection is waived.
DATED this 20th day of November, 2024.
______________________________
Kathleen L. DeSoto
United States Magistrate Judge

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