Maitland et al v. Lunn et al

Filing 130

AMENDED ORDER Re: 129 Order; For the foregoing reasons, and in light of multiple extensions of time, assistance from the Court, and the USMS's unsuccessful service attempt, the case is DISMISSED as to Defendant Lunn WITHOUT PREJUDICE. The re are no remaining Defendants. Given Plaintiffs' pro se status, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for pu rposes of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). The Clerk of the Court is directed to mark this case CLOSED and mail a copy of this Order to the pro se Plaintiffs. So Ordered by Judge Joanna Seybert on 11/12/2019. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------x
EDSON MAITLAND and EDSON
MAITLAND, JR.,
Plaintiffs,
-against-

AMENDED ORDER1
14-CV-5938(JS)(AKT)

FAWN-NITA LUNN,
Defendants.
----------------------------------x
APPEARANCES
For Plaintiffs:
Edson Maitland, pro se
Edson Maitland, Jr., pro se
33 Ramblewood Drive
Palm Coast, Florida 32164
For Defendant:
Fawn-Nita Lunn

No Appearance

SEYBERT, District Judge:
Pro se plaintiffs Edson Maitland (“Maitland”) and Edson
Maitland, Jr. (“Maitland Jr.” and together, “Plaintiffs”) initiated
this diversity action on October 6, 2014 against defendants FawnNita Lunn (“Lunn”), the Town of Hempstead, New York (the “Town”),
and

the

County

“Defendants”).

of

Nassau

(the

“County”

and

together,

the

(Compl., D.E. 1.)

On April 18, 2015 Plaintiffs filed a motion requesting
an address and on May 8, 2015, Magistrate Judge A. Kathleen
Tomlinson granted Plaintiffs’ request that the County disclose

This Order is amended to include citation to Coppedge v. United
States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21
(1962).
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Lunn’s last known address for Plaintiffs to effectuate service.
(See D.E. 12, 14, & 20.)

On March 30, 2017, Plaintiffs filed an

Amended Complaint against Defendants.

(Am. Compl., D.E. 66.)

Town and County were properly served.

The

However, at a conference

before Judge Tomlinson on December 19, 2017, Plaintiffs were
informed that “it appeared [Plaintiffs] did not serve the Amended
Complaint on [ ] Lunn” and if Plaintiffs intend to “pursue this
matter against [ ] Lunn, then they must make arrangements” to serve
Lunn no later than January 15, 2018.

(Minute Order, D.E. 76.)

On

January 6, 2018, Plaintiffs requested an “additional two weeks” to
serve Lunn and an Order directing the County to again disclose
Lunn’s address.

(See D.E. 84.)

The County opposed Plaintiffs’

request (D.E. 86) and on September 19, 2018, Judge Tomlinson
granted Plaintiffs’ request for an extension but declined to issue
an Order requiring the County to “disclose [ ] Lunn’s address a
second time” (Order, D.E. 106, at 7-8).
By Memorandum and Order (“M&O”) dated July 2, 2019, the
Court dismissed Plaintiffs’ claims against the Town and County on
the basis that the Court lacks subject matter jurisdiction.
D.E. 119.)

(M&O,

The Court also found that Plaintiffs failed to serve

Lunn in accordance with Federal Rule of Civil Procedure 4(m) and
warned Plaintiffs that their failure to serve Lunn on or before
August 30, 2019 would result in dismissal.
August 17,

2019,

Plaintiffs

requested
2

a

(M&O at 19.)

30-day

extension

On
to

effectuate service (see D.E. 123), which the Court granted in an
Electronic Order dated August 21, 2019.

In the August 21, 2019

Electronic Order, the Court warned that “[n]o further extensions
of

this

deadline

circumstances.”

will

be

granted

absent

extraordinary

On August 26, 2019, Plaintiffs requested an Order

directing the U.S. Marshals Service (“USMS”) to serve Lunn (see
D.E.

125),

which

September 3, 2019.

was

granted

in

an

Electronic

Order

dated

The Court directed Plaintiffs to provide the

Court with Lunn’s address on or before September 30, 2019 or “the
case will be dismissed as to Lunn without further notice.”

(See

Sept. 3, 2019 Elec. Order.)
On September 10, 2019, Plaintiffs filed a letter listing
five different addresses for Lunn and attached a two-page document
entitled “Premium People Search” that listed 360 Snediker Ave.,
Apt. 2E, Brooklyn, NY 11207 as Lunn’s address from “9/1/2003 CURRENT.”

(See D.E. 126 at 4-5.)

On September 13, 2019, given

Plaintiffs’ pro se status and in abundance of caution, the Court
Ordered the USMS to serve Lunn at the Snediker Avenue address and
warned that “any further attempts to serve at that address will
not be made.”

(See Sept. 13, 2019 Elec. Order.)

On October 17,

2019 the USMS attempted service at the Snediker Avenue Address and
on October 28, 2019, the USMS returned the summons unexecuted.
(See D.E. 128.)

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CONCLUSION
For the foregoing reasons, and in light of multiple
extensions of time, assistance from the Court, and the USMS’s
unsuccessful service attempt, the case is DISMISSED as to Defendant
Lunn WITHOUT PREJUDICE.

There are no remaining Defendants.

Given Plaintiffs’ pro se status, the Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis
status is DENIED for purposes of an appeal.

Coppedge v. United

States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mark this case
CLOSED and mail a copy of this Order to the pro se Plaintiffs.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
DATED:

November 12 , 2019
Central Islip, New York

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