Phillips et al v. United States Postal Service

Filing 6

ORDER - Accordingly, any claims set forth in the Complaint on behalf of "The Wendler Family" are DISMISSED WITHOUT PREJUDICE. ACCORDINGLY, by way of filing a letter with the Court by no later than January 28, 2022, Plaintiff is ORDERED TO SHOW CAUSE why the Court should not dismiss this action without prejudice for failure to timely serve the Summons and a copy of the Complaint upon the Defendant. PLAINTIFF IS ON NOTICE: If Plaintiff does not timely respond to this Order or does not show good cause for his failure to timely serve the Summons and Complaint, the Complaint will be dismissed without prejudice pursuant to Federal Rules of Civil Procedure 4(m) and 41(b). The Clerk of Court is directed to mail a copy of this Order to Plaintiff at his address of record. Although Plaintiff paid the filing fee in this Court, 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, should Plaintiff seek leave to appeal in forma pauperis, such status is denied for the purpose of any appeal. So Ordered by Judge Joanna Seybert on 1/11/2022. C/M (Valle, Christine)

Case 2:21-cv-05681-JS-ARL Document 6 Filed 01/11/22 Page 1 of 4 PageID #: 16

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
DOMINIQUE PHILLIPS, and
THE WENDLER FAMILY,
Plaintiffs,

ORDER
21-CV-5681(JS)(ARL)

-against-

UNITED STATES POST OFFICE,
Defendant.
---------------------------------X
APPEARANCES
For Plaintiffs:
Dominique Phillips, pro se
11 Mirin Avenue
P.O. Box 161
Roosevelt, New York 11575
For Defendant:

No appearances.

SEYBERT, District Judge:
On October 4, 2021, Dominique Phillips (“Phillips” or
“Plaintiff”), proceeding pro se, commenced a purported wrongful
death action by filing Complaint in this Court on behalf of himself
and “The Wendler Family.”

(See Complaint, ECF No. 1.)

Complaint was signed only by Phillips, “Pro Se”.

The

(See id. at 3.)

There is no indication that he is a licensed attorney or has been
retained by The Wendler Family to represent it.

Rather, in the

accompanying Civil Cover Sheet, it indicates that both Phillips
and “The Wendler Family” are proceeding without counsel.
Civil

Cover

Sheet,

ECF

No.

1-1,

Part

I(c)

(in

identifying Plaintiffs Attorneys, stating “pro se”).)

section

(See
for

Case 2:21-cv-05681-JS-ARL Document 6 Filed 01/11/22 Page 2 of 4 PageID #: 17

As an initial matter, “28 U.S.C. § 1654, which governs
appearances

in

federal

court,

.

.

.

allow[s]

two

types

of

representation: ‘that by an attorney admitted to the practice of
law

by

a

governmental

representing himself.’”

regulatory

body

and

that

by

a

person

Lattanzio v. COMTA, 481 F.23d 137, 139

(2d Cir. 2007) (quoting Eagle Assocs. v. Bank of Montreal, 926
F.2d 1305, 1308 (2d Cir. 1991) (internal quotation marks omitted)).
“The statute does not permit ‘unlicensed laymen to represent anyone
else other than themselves.’”
Eagle Assocs.).

Lattanzio, 481 F.3d at 139 (quoting

Thus, while Phillips, a non-lawyer, may represent

himself, he cannot represent “The Wendler Family” in this Court.
Accordingly, any claims set forth in the Complaint on behalf of
“The Wendler Family” are DISMISSED WITHOUT PREJUDICE.
Second, after Phillips paid the Court’s filing fee on
October 12, 2021, on October 15, 2021, the Court sent Phillips a
letter together with: (1) a copy of the receipt of payment of the
filing fee, and (2) an original, stamped and issued Summons (with
a copy of same), with instructions for effecting service of the
Summons and Complaint upon the Defendant.

(See ECF No. 5.)

To

date, Plaintiff has not filed a return of service executed nor has
the Defendant appeared in this action.

2

Case 2:21-cv-05681-JS-ARL Document 6 Filed 01/11/22 Page 3 of 4 PageID #: 18

Federal Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 90 days
after the complaint is filed, the court -- on
motion or on its own after notice to the
plaintiff -- must dismiss the action without
prejudice against that defendant or order that
service be made within a specified time. But
if the plaintiff shows good cause for the
failure, the court must extend the time for
service for an appropriate period.
FED. R. CIV. P. 4(m).
ACCORDINGLY, by way of filing a letter with the Court by
no later than January 28, 2022, Plaintiff is ORDERED TO SHOW CAUSE
why the Court should not dismiss this action without prejudice for
failure to timely serve the Summons and a copy of the Complaint
upon the Defendant.

PLAINTIFF IS ON NOTICE:

If Plaintiff does

not timely respond to this Order or does not show good cause for
his

failure

to

timely

serve

the

Summons

and

Complaint,

the

Complaint will be dismissed without prejudice pursuant to Federal
Rules of Civil Procedure 4(m) and 41(b).
The Court reminds Plaintiff that he is required to advise
the Clerk of Court as to any changes of address and a failure to
do so may result in the dismissal of the case.

The Clerk of Court

is directed to mail a copy of this Order to Plaintiff at his
address of record.
Although Plaintiff paid the filing fee in this Court, the
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
3

Case 2:21-cv-05681-JS-ARL Document 6 Filed 01/11/22 Page 4 of 4 PageID #: 19

from this Order would not be taken in good faith and therefore,
should Plaintiff seek leave to appeal in forma pauperis, such
status is denied for the purpose of any appeal.

See Coppedge v.

United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.

_/s/ JOANNA SEYBERT_____
JOANNA SEYBERT, U.S.D.J.
Dated:

January _11 , 2022
Central Islip, New York

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