Wiles et al v. Commissioner of Social Security
MEMORANDUM AND ORDER that the plaintiffs shall have until 7/3/13 to complete service of process or to show cause why this case should not be dismissed for their failure to effect service of process. If plaintiffs do not respond, or if good cause is n ot shown, this action will be dismissed without prejudice and without further notice. The clerk's office is directed to set a pro se case management deadline with the following text: July 3, 2013: deadline for plaintiffs to show cause why service of process was not completed. Ordered by Judge John M. Gerrard. (Copy mailed to pro se parties) (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FRANCIS WILES and JUDY T.
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
This matter is before the Court on its own motion. On February 12,
2013, the Court granted plaintiffs leave to proceed in forma pauperis. Filing
4. The Court directed the Clerk’s Office to send plaintiffs three blank
summons forms and three copies of Form 285 for use in completing service of
process on the United States. The Court's order further stated that plaintiffs
were required to effect service of process no later than 120 days after the
complaint has been filed. The record reflects that the Clerk’s Office sent these
forms to plaintiffs on the same day.
The record also shows that although plaintiffs returned the completed
summons forms, they have not completed service of process. See filing 5.
Pursuant to Federal Rule of Civil Procedure 4, service of process must be
completed within 120 days after the complaint is filed. Fed. R. Civ. P. 4(m).
Because the plaintiffs returned the summons forms on the 119th day, the
Court waited an additional 2 weeks to see if service would be completed. It
has not been.
Where service has not been completed within 120 days after the filing
of the complaint, the Court may, on its own motion, dismiss the action
without prejudice or order that service be made within a specified time,
provided that the plaintiff is first notified. Fed. R. Civ. P. 4(m). Additionally,
if a plaintiff shows there was "good cause" for the failure to complete service
in a timely fashion, the Court must extend the time for service for an
appropriate period. Fed. R. Civ. P. 4(m); Adams v. AlliedSignal Gen. Aviation
Avionics, 74 F.3d 882, 887 (8th Cir. 1996). Accordingly,
IT IS ORDERED:
Plaintiffs shall have until July 3, 2013, to complete service of
process or to show cause why this case should not be dismissed for their
failure to effect service of process. If plaintiffs do not respond, or if good cause
is not shown, this action will be dismissed without prejudice and without
The clerk’s office is directed to set a pro se case management
deadline with the following text: July 3, 2013: deadline for plaintiffs to show
cause why service of process was not completed.
Dated this 3rd day of June, 2013.
BY THE COURT:
John M. Gerrard
United States District Judge
Notice Regarding Federal Rule of Civil Procedure 4(i)
Federal Rule of Civil Procedure 4(i) regarding “Serving the United States and Its
Agencies, Corporations, Officers, or Employees,” states:
(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint to the
United States attorney for the district where the action is
brought--or to an assistant United States attorney or clerical
employee whom the United States attorney designates in a
writing filed with the court clerk--or
send a copy of each by registered or certified mail to the civilprocess clerk at the United States attorney’s office;
send a copy of each by registered or certified mail to the
Attorney General of the United States at Washington, D.C.; and
if the action challenges an order of a nonparty agency or officer
of the United States, send a copy of each by registered or
certified mail to the agency or officer.
(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve
a United States agency or corporation, or a United States officer or employee sued
only in an official capacity, a party must serve the United States and also send a
copy of the summons and of the complaint by registered or certified mail to the
agency, corporation, officer, or employee.
(3) Officer or Employee Sued Individually. To serve a United States officer or
employee sued in an individual capacity for an act or omission occurring in
connection with duties performed on the United States' behalf (whether or not the
officer or employee is also sued in an official capacity), a party must serve the
United States and also serve the officer or employee under Rule 4(e), (f), or (g).
(4) Extending Time. The court must allow a party a reasonable time to cure its
serve a person required to be served under Rule 4(i)(2), if the
party has served either the United States attorney or the
Attorney General of the United States; or
serve the United States under Rule 4(i)(3), if the party has
served the United States officer or employee.
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