Schmal v. Luna County et al

Filing 24

SECOND ORDER FOR SERVICE by Magistrate Judge Gregory J. Fouratt. (gbg)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
RAYMOND WILLIAM SCHMAL,
Plaintiff,
v.

Civ. No. 20-1324 CG/GJF

LUNA COUNTY, et al.,
Defendants.
SECOND ORDER FOR SERVICE
THIS MATTER is before the Court on pro se Plaintiff’s “Motion to Request Officers of
the Court to Serve a Copy of Plaintiff's Summons and Complaint on the Defendants” [ECF 21]
(“Motion”).
Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. This statute
provides that the “officers of the court shall issue and serve all process … in such cases.”
§ 1915(d). The Court orders service of the summons and Complaint on Defendants Foster, McCoy
and Reitz at the addresses1 provided by Plaintiff pursuant to Rule 4(e), which provides:
Unless federal law provides otherwise, an individual--other than a minor, an
incompetent person, or a person whose waiver has been filed--may be served in a
judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court is located or where
service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the
individual personally;

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Plaintiff states he does not know the home addresses of Defendants Foster, McCoy or Reitz and that Defendants
Foster, McCoy and Reitz are agents, owners, or employees of the entities whose addresses Plaintiff provides for each
Defendant. See ECF 21 at 2.

(B) leaving a copy of each at the individual's dwelling or usual place
of abode with someone of suitable age and discretion who resides
there; or
(C) delivering a copy of each to an agent authorized by appointment
or by law to receive service of process.
Fed. R. Civ. P. 4(e). New Mexico state law for serving process states:
E. Process; how served; generally.
(1) Process shall be served in a manner reasonably calculated, under all the
circumstances, to apprise the defendant of the existence and pendency of
the action and to afford a reasonable opportunity to appear and defend.
(2) Service may be made, subject to the restrictions and requirements of this
rule, by the methods authorized by this rule or in the manner provided for
by any applicable statute, to the extent that the statute does not conflict with
this rule.
(3) Service may be made by mail or commercial courier service provided
that the envelope is addressed to the named defendant and further provided
that the defendant or a person authorized by appointment, by law or by this
rule to accept service of process upon the defendant signs a receipt for the
envelope or package containing the summons and complaint, writ or other
process. Service by mail or commercial courier service shall be complete
on the date the receipt is signed as provided by this subparagraph. For
purposes of this rule “signs” includes the electronic representation of a
signature.
F. Process; personal service upon an individual. Personal service of process shall
be made upon an individual by delivering a copy of a summons and complaint or
other process:
(1)(a) to the individual personally; or if the individual refuses to accept
service, by leaving the process at the location where the individual has been
found; and if the individual refuses to receive such copies or permit them to
be left, such action shall constitute valid service; or
(b) by mail or commercial courier service as provided in
Subparagraph (3) of Paragraph E of this rule.
(2) If, after the plaintiff attempts service of process by either of the methods
of service provided by Subparagraph (1) of this paragraph, the defendant
has not signed for or accepted service, service may be made by delivering a
copy of the process to some person residing at the usual place of abode of
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the defendant who is over the age of fifteen (15) years and mailing by first
class mail to the defendant at the defendant's last known mailing address a
copy of the process; or
(3) If service is not accomplished in accordance with Subparagraphs (1) and
(2), then service of process may be made by delivering a copy of the process
at the actual place of business or employment of the defendant to the person
apparently in charge thereof and by mailing a copy of the summons and
complaint by first class mail to the defendant at the defendant's last known
mailing address and at the defendant's actual place of business or
employment.
N.M.R.A. 1-0004(E-F).
The Court notes that Defendants McCoy and Reitz recently filed (along with Defendant
Deming Animal Guardians) a “Motion to Dismiss Plaintiff’s Original Complaint for Failure to
State a Claim Pursuant to Fed. R. Civ. P. 12(b)(6)” [ECF 22]. This motion does not expressly
address service of process (e.g., by alleging “insufficient service of process,” Fed. R. Civ. P.
12(b)(5), or expressly waiving such service). See ECF 22 at 1-9; see also FDIC v. Oaklawn
Apartments, 959 F.2d 170, 173 (10th Cir. 1992) (observing that “[i]f a party files a pre-answer
motion and fails to assert the defenses of lack of personal jurisdiction or insufficiency of service,
he waives these defenses”). Furthermore, because “Defendants do not intend to waive any
affirmative defenses” and may “assert … additional affirmative defenses at a later date,” ECF 22
at 1 n.1 (emphasis added), the Court will still require service of process on Defendants McCoy and
Reitz.
IT IS THEREFORE ORDERED that Plaintiff’s Motion is GRANTED in that the Clerk
of the Court shall provide a copy of this Order [ECF 24], a summons, and a copy of Plaintiff’s
Complaint [ECF 1] to the United States Marshals Service. The United States Marshals Service
shall serve a copy of this Order, a summons and a copy of Plaintiff’s Complaint on the following
persons:

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Sandy Foster
Luna County Animal Control Shelter
2135 Onate Ave.
Deming, New Mexico 88030
Tammy McCoy
Sunshine Groomers
1755 Domingo Rd. SW
Deming, New Mexico 88030
Tammy McCoy
Deming Animal Guardians
2117 Columbus Rd. SE
Deming, New Mexico 88030
Mike Reitz
Sunshine Groomers
1755 Domingo Rd SW
Deming, New Mexico 88030
Mike Reitz
Deming Animal Guardians
2117 Columbus Rd SE
Deming, New Mexico 88030
SO ORDERED.

________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE

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