Love v. State of Nevada

Filing 17

ORDER denying 15 Motion for Service; ORDER denying 16 Motion for Refund; Signed by Magistrate Judge Carl W. Hoffman on 3/1/2018. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILSON EARL LOVE,

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Plaintiff,
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v.
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STATE OF NEVADA,
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Defendant.
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_______________________________________ )

Case No. 2:17-cv-01317-RFB-CWH

ORDER

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Presently before the Court is Plaintiff’s motion to join (ECF No. 9), filed on June 19, 2017.

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Also before the Court are Plaintiff’s motion for the U.S. Marshal to serve summons and complaint

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(ECF No. 15), filed on August 15, 2017, and Plaintiff’s motion for refund of fee (ECF No. 16), filed

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on February 9, 2018.

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On July 11, 2017, this Court entered a report and recommendation (ECF No. 12) that this

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case be dismissed for failure to pay the filing fee. On July 25, 2017, pro se Plaintiff Wilson Earl

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Love filed an objection to that order (ECF No. 13), asking for additional time to pay the filing fee.

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Plaintiff then paid the filing fee on August 15, 2017. ECF No. 14-1. In light of Plaintiff’s objection

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and remittance of the filing fee, the Court will vacate the report and recommendation.

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I.

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Motion to Join
Plaintiff moves the Court to join new parties to this case as defendants, specifically the City

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of Las Vegas and Clark County Municipal Court. Plaintiff does not cite any authority that would

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allow the Court to add new parties to his existing complaint. However, Federal Rule of Civil

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Procedure 15(1)(A) allows a party to amend its pleading once as a matter of course within 21 days

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after service on defendants. The Court will therefore construe Plaintiff’s motion to join as a motion

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to amend his complaint. Here, it does not appear that any defendant has been served. The Court will

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therefore grant the motion to amend.

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II.

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Motion for Service
Plaintiff also moves the Court to order the U.S. Marshal to serve a summons and a copy of
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his complaint on defendants. Under Federal Rule of Civil Procedure 4(c)(3), a party proceeding in

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forma pauperis is entitled to have the summons and complaint served by the U.S. Marshal. Puett v.

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Blandford, 912 F.2d 270, 273 (9th Cir. 1990). However, Plaintiff is not proceeding in forma

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pauperis in this case, and does not cite to any authority that would allow this Court to order service

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by the Marshal without an approved application to proceed in forma pauperis, or suggest any good

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cause for doing so. Under Local Rule 7-2(d), the failure of a moving party to file points and

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authorities in support of a motion constitutes a consent to the denial of the motion. The Court will

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therefore deny Plaintiff’s motion for service. Plaintiff is advised he is responsible for effecting

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service on defendants in compliance with Federal Rule of Civil Procedure 4.

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III.

Motion for Refund of Fee

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Finally, Plaintiff moves for a refund of the filing fee in this case. It is unclear on what

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grounds Plaintiff is requesting a refund. However, filing fees for initiating a lawsuit in district court

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are authorized by 28 U.S.C. § 1914 and are part of the costs of litigation. The Court is not aware of

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any provision for refunds of the filing fee, nor does Plaintiff provide any. Under Local Rule 7-2(d),

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the failure of a moving party to file points and authorities in support of a motion constitutes a

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consent to the denial of the motion. The Court will therefore deny Plaintiff’s motion for a refund.

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IT IS THEREFORE ORDERED that the Court’s Report and Recommendation (ECF No. 12)
is VACATED.

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IT IS FURTHER ORDERED that Plaintiff’s motion to join (ECF No. 9) is GRANTED.

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Plaintiff may file an amended complaint within thirty days of the date of this order. Plaintiff is

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advised that if he files an amended complaint, the original complaint (ECF No. 14) no longer serves

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any function in this case. As such, the amended complaint must be complete in and of itself without

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reference to prior pleadings or other documents. The court cannot refer to a prior pleading or other

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documents to make Plaintiff’s amended complaint complete.

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IT IS FURTHER ORDERED that Plaintiff’s motion for service (ECF No. 15) is DENIED.

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IT IS FURTHER ORDERED that Plaintiff’s motion for refund (ECF No. 16) is DENIED.

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DATED: March 1, 2018

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_________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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