Wilson et al v. Fletcher et al

Filing 27

ORDER denying as moot Plaintiffs' Motion for Personal Service 23 and denying Plaintiffs' Motion to Strike Answer and for Default Judgment 26 . Ordered by Chief Judge Laurie Smith Camp. (KMG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HAROLD B. WILSON, and
GRACY SEDLAK,
Plaintiffs,
v.
JOSEPH FLETCHER, and
ORA THOMAS FLETCHER,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. 4:12CV3061

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiffs’ “Motion for Personal Service” and
“Motion to Strike Answer and for Default Judgment.” (Filing Nos. 23 and 26.) The court
will deny both Motions.
In Plaintiffs’ “Motion for Personal Service,” Plaintiffs ask that the summons forms
issued on September 4, 2012, be served by the United States Marshal’s Service. (Filing
No. 23.) Federal Rule of Civil Procedure 4(c)(3) gives the court discretion, “[a]t the
plaintiff’s request,” to order that service be made by a United States marshal, even when
a plaintiff does not qualify to proceed in forma pauperis. Yates v. Baldwin, 633 F.3d 669,
672 (8th Cir. 2011).
Here, Plaintiffs are not proceeding in forma pauperis, and they have already
requested that service be made by a United States marshal. (See Filing No. 13 at CM/ECF
p. 1.) In addition, the court already ordered that service be made by a United States
marshal. (Filing No. 20.) Accordingly, Plaintiffs’ “Motion for Personal Service” will be
denied as moot.
In Plaintiffs’ “Motion to Strike Answer and for Default Judgment,” Plaintiffs ask the
court to strike Defendant Ora Thomas Fletcher’s Answer, and enter default judgment

against him. (Filing No. 26.) They argue that this defendant did not file a certificate of
service with his Answer, or mail a copy of his Answer to Plaintiff Gracy Sedlak. (Id.)
Plaintiffs are correct that Defendant Ora Thomas Fletcher did not attach a certificate
of service to his Answer. (See Filing No. 24.) However, it is clear that Plaintiffs both
received a copy of the Answer, as they attached a copy of it to their jointly signed Motion.
(See Filing No. 26.) Accordingly, Plaintiffs’ “Motion to Strike Answer and Motion for Default
Judgment” will be denied.

IT IS THEREFORE ORDERED that:
1.

Plaintiffs’ “Motion for Personal Service” is denied as moot. (Filing No. 23);
and

2.

Plaintiffs’ “Motion to Strike Answer and for Default Judgment” is denied.
(Filing No. 26).

DATED this 13th day of November, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
guarantee any third parties or the services or products they provide on their Web sites.
Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
2