Saunders et al v. First Magnus Financial Corporation et al

Filing 17

ORDER/Opinion (as outlined)granting in part and denying in part 11 Ex Parte Expedited Motion to Extend Deadlines for Service of Process ; granting in part and denying in part 12 EX PARTE EXPEDITED MOTION TO INCLUDE AND ATT ACH JUST VERIFIED INFORMATION ; denying 13 EX PARTE MOTION FOR COSTS OF SERVICE OF PROCESS TO BE LEVIED AGAINST DEFENDANTS AND FOR THE APPOINTMENT OF U.S. MARSHALS TO EFFECT SERVICE. The court instructs the clerks office to remove the ex parte designations of the plaintiffs motions (doc. nos. 11, 12, 13) and replace them as regular pleadings on the docket. So Ordered by Magistrate Judge Andrea K. Johnstone.(cmp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Janet Saunders and
Peter Saunders
v.

Case No. 16-cv-222-JL
Opinion No. 2016 DNH 143

First Magnus Financial
Corporation, et al.
O R D E R
In May 2016, Janet Saunders and Peter Saunders, proceeding
pro se, filed suit against twenty-one defendants alleging a
variety of claims.

Doc. no. 1.

The plaintiffs allege that

completing service to all of the defendants has been difficult.
As a result, the plaintiffs now move, in three ex parte
motions, to extend the time limit for service, “[d]irectly
impose the costs of effecting service of process on certain
[d]efendants[,]” and for the court to “[a]uthorize and order
the appointment of the U.S. Marshals Service for purposes of
effecting service of process on certain [d]efendants . . . .”
See doc. nos. 11, 12, 13.

The court construes plaintiffs’

“Motion to Include and Attach Just Verified Information” (doc.
no. 12) as an addendum to its Motion to Extend (doc. no. 11).
Federal Rule of Civil Procedure 4(m) states that “if the
plaintiff shows good cause” for failing to timely serve
defendants, “the court must extend the time for service for an
appropriate period.”

Good cause may be found

when the plaintiff's failure to complete service in
timely fashion is a result of the conduct of a third
person, typically the process server, the defendant
has evaded service of the process or engaged in
misleading conduct, the plaintiff has acted
diligently in trying to effect service or there are
understandable mitigating circumstances, or the
plaintiff is proceeding pro se or in forma pauperis.
4B Charles Alan Wright, Arthur R. Miller, Federal Practice and
Procedure § 1137 (4th ed. 2016).
Here, the plaintiffs who are proceeding pro se, have
demonstrated their efforts in effecting service to the many
defendants located around the country.

As such, the court

grants the plaintiffs’ motion (doc. no. 11) only to the extent
that the time for service be extended to September 26, 2016.
In addition to extending the service deadline, the
plaintiffs move for fees incurred for serving the parties.
Under the Federal Rules, if a domestic defendant fails to sign
and return a waiver without good cause, the court must impose
expenses incurred in making service and reasonable expenses.
Fed. R. Civ. P. 4(d)(2).

Nevertheless, “[t]he plaintiff is

responsible for having the summons and complaint served within
the time allowed by Rule 4(m) and must furnish the necessary
copies to the person who makes service.”

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

Thus, “[i]t is not this Court's chore to serve the named
defendants, nor do the defendants have an obligation to waive
service of process.

It is solely the plaintiff's obligation to
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serve the defendants timely and properly.”

Cooley v. Cornell

Corr., 220 F.R.D. 171, 172 (D.R.I. 2004).

As such, the court

denies the plaintiff’s request for expenses incurred in making
service without prejudice to renewing the motion after the
extended service deadline.

Doc. no. 13.

The plaintiffs also request service be made by U.S.
Marshal.

Ordering service by U.S. Marshal is generally

discretionary and only mandatory when the plaintiff “is
authorized to proceed in forma pauperis under 28 U.S.C. § 1915
or as a seaman under 28 U.S.C. § 1916.”
in this case.

Neither are applicable

Therefore, the court denies the plaintiffs’

request to appoint U.S. Marshal to effect service.

Doc. no.

13.
The court instructs the clerk’s office to remove the ex
parte designations of the plaintiffs’ motions (doc. nos. 11,
12, 13) and replace them as regular pleadings on the docket.
The designation of these motions as ex parte is inappropriate
since the plaintiffs have indicated they have sent copies of at
least one of the motions to some of the defendants.
no. 12.

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See doc.

Conclusion
The plaintiffs’ motions (doc. nos. 11 and 12) are granted
in part and denied in part as stated in this order.

The

plaintiffs’ motion (doc. no. 13) is denied.
SO ORDERED.
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 19, 2016
cc:

Janet Saunders, Pro Se
Peter Saunders, Pro Se
Scott C. Owens, Esq.
Mary Ellen Manganelli, Esq.
James L. Rogal, Esq.

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