Ellis v. United States of America et al

Filing 32

ORDER by Magistrate Judge Gregory B. Wormuth quashing 30 Order to Show Cause and ordering Plaintiff to file proof of service as to the Keyes Defendants by 7/22/2021. (ceo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JOE ELLIS,
Plaintiff,
v.

Civ. No. 20‐971 CG/GBW

UNITED STATES OF AMERICA, et al.,
Defendants.
ORDER QUASHING ORDER TO SHOW CAUSE AND ORDERING PLAINTIFF TO
FILE PROOF OF SERVICE
THIS MATTER comes before the Court on its Order to Show Cause (doc. 30) and
Plaintiff’s response thereto (doc. 31). Plaintiff filed suit against numerous Defendants on
September 22, 2020, but has not yet filed proof of service as to Defendants Ashlee Lynn
Keyes and Asa Joshua Stephen Keyes (“Keyes Defendants”) as required by Federal Rule
of Civil Procedure 4(l). The Court authorized Plaintiff to serve these Defendants via
publication, see doc. 28, and twice exercised its discretion to extend the deadline for
serving them, see docs. 18, 26.
As the most recent deadline, July 6, 2021, see doc. 26 at 9, came and went without
Plaintiff filing the requisite proof of service as to the Keyes Defendants, the Court filed
an Order to Show Cause requiring Plaintiff to
either (i) file proof of service as to the Keyes Defendants, or (ii) show cause why
his case should not be dismissed without prejudice as to the Keyes Defendants
for failure to comply with the service and time provisions of Rule 4(m) as

extended by the Court’s Order Extending the Service Deadline as to Defendants
Ashley Lynn Keyes and Asa Joshua Stephen Keyes (doc. 26).
Doc. 30 at 2. On July 14, 2021, Plaintiff filed a response, arguing that good cause exists
to not dismiss the Keyes Defendants since Plaintiff served them via publications in the
Albuquerque Journal and Las Cruces Sun News before the July 6, 2021 deadline. Doc.
31 at 2.
The Federal Rules of Civil Procedure provide that “[f]ailure to prove service does
not affect the validity of service.” Fed. R. Civ. P 4(l)(3). Courts interpret this provision
to “mean[] what it says.” Colony Ins. Co. v. Ropers of Hattiesburg, LLC, No. 2:11cv3KSMTP, 2011 WL 1226095, at *4 (S.D. Miss. Mar. 29, 2011) (unpublished) (gathering cases
and treatises). “[B]elatedly filed proof of service does not render … service untimely or
improper.” Gusler v. City of Long Beach, 823 F. Supp. 2d 98, 123 (E.D.N.Y. 2011); see also
United States ex rel. Morgan v. Champion Fitness, Inc., No. 1:13-cv-1593, 2018 WL 5114124,
at *9 (C.D. Ill. Oct. 19, 2018) (unpublished).
Plaintiff’s response establishes that he constructively served the Keyes
Defendants by publication pursuant to Federal Rule of Civil Procedure 4(e)(1) and New
Mexico Rule 1-004(K) before the July 6, 2021 deadline. It contains an affidavit from
Plaintiff’s counsel in which he swears that Plaintiff “publish[ed] service in the
Albuquerque Journal and the Las Cruces Sun News once a week for three consecutive
weeks” and that the last publication dates were June 26, 2021, and June 28, 2021,
respectively. Doc. 31 at 4. It also contains affidavits of publication from these
2

newspapers’ authorized representative or legal clerk attesting to the publication of
notices of the pendency of this suit before and on these dates. Id. at 7–8.
Accordingly, IT IS HEREBY ORDERED that the Court’s Order to Show Cause is
QUASHED and that Plaintiff shall refile the three affidavits in his response as the proof
of service on the Keyes Defendants required by Rule 4(l) within seven (7) days from the
issuance of this order.
IT IS SO ORDERED.

_________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE

3