Johnson v. Edwards et al

Filing 25

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,

)
)
Plaintiff,
)
)
v.
)
)
VINCE EDWARDS, Branch
)
Contract Manager, et al.,
)
)
Defendants.
)
______________________________)

8:12CV244

MEMORANDUM AND ORDER

This matter is before the Court on its own motion.

The

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.
18).

On December 21, 2012, the certified mail was returned

because it was “not deliverable as addressed.”

(Id. at CM/ECF

pp. 3-4.)
Federal Rule of Civil Procedure 4 requires that service
of process be completed “within 120 days after the complaint is
filed.”

Fed. R. Civ. P. 4(m).

Here, the Marshals Service’s

attempt to serve Miss McGee, as directed by plaintiff, was
ineffective.

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
court.

That is Plaintiff’s responsibility.”)
IT IS ORDERED:
1.

Plaintiff is given an additional 45 days in which

to serve Miss McGee with summons.
2.

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.

In the

absence of the forms, service of process cannot occur.
3.

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.

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4.

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.
5.

In accordance with General Order 2007-12, the

Court will issue a progression order after the last defendant has
answered.

No discovery shall take place until such a progression

order is entered.
6.

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

*This opinion may contain hyperlinks to other documents or
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of the Court.
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