Johnson v. Edwards et al
MEMORANDUM AND ORDER that Plaintiff is given an additional 45 days in whichto serve Miss McGee with summons. The clerk's office shall send ONE summons form and ONE USM-285 form to plaintiff, together with a copy of this Memorandum and Order. Pl aintiff must, as soon as possible, complete and return the forms to the clerk's office who will forward to USM for service. The clerk's office is directed to set a pro se case management deadline in this case with the following text: March 22, 2013: Check for completion of service of summons, and enter progression order as to the defendants who have answered. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party with forms) (ADB, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TERRY N. JOHNSON,
VINCE EDWARDS, Branch
Contract Manager, et al.,
MEMORANDUM AND ORDER
This matter is before the Court on its own motion.
record reflects the United States Marshals Service (“Marshals
Service”) attempted to effect service on defendant Miss McGee by
certified mail at the address provided by plaintiff (Filing No.
On December 21, 2012, the certified mail was returned
because it was “not deliverable as addressed.”
(Id. at CM/ECF
Federal Rule of Civil Procedure 4 requires that service
of process be completed “within 120 days after the complaint is
Fed. R. Civ. P. 4(m).
Here, the Marshals Service’s
attempt to serve Miss McGee, as directed by plaintiff, was
Without effective service of summons, this case
cannot proceed against Miss McGee.
Plaintiff will be given an additional 45 days to
properly serve Miss McGee.
Plaintiff should note that it is his
duty to determine Miss McGee’s whereabouts, not the duty of the
Marshals Service or the clerk’s office.
See Gray v. Rose, 2009
WL 2132623, at *3 (S.D. Ohio 2009) (“The fact that this defendant
could not be effectively served with process at that address is
chargeable to plaintiff, not to either the Clerk or the
Marshal.”); see also Gustaff v. MT Ultimate Healthcare, 2007 WL
2028103, at *3 (E.D. N.Y. 2007) (“The United States Marshals
Service cannot investigate defendant’s whereabouts, nor can the
That is Plaintiff’s responsibility.”)
IT IS ORDERED:
Plaintiff is given an additional 45 days in which
to serve Miss McGee with summons.
The clerk’s office shall send ONE summons form and
ONE USM-285 form to plaintiff, together with a copy of this
Memorandum and Order.
Plaintiff must, as soon as possible,
complete and return the forms to the clerk’s office.
absence of the forms, service of process cannot occur.
Upon receipt of the completed forms, the clerk’s
office will sign the summons form, to be forwarded with a copy of
the complaint to the Marshals Service for service of process.
The Marshals Service shall serve the summons and complaint
without payment of costs or fees pursuant to Federal Rule of
Civil Procedure 4.
Service may be by certified mail pursuant to
Federal Rule of Civil Procedure 4 and Nebraska law in the
discretion of the Marshals Service.
The clerk’s office will copy
the complaint, and plaintiff does not need to do so.
Plaintiff is notified that failure to obtain
service of process on Miss McGee within 45 days will result in
dismissal of this matter without further notice as to Miss McGee.
Miss McGee has 21 days after receipt of the summons to answer or
otherwise respond to the complaint.
In accordance with General Order 2007-12, the
Court will issue a progression order after the last defendant has
No discovery shall take place until such a progression
order is entered.
The clerk’s office is directed to set a pro se
case management deadline in this case with the following text:
March 22, 2013:
Check for completion of service of summons, and
enter progression order as to the defendants who have answered.
DATED this 5th day of February, 2013.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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