Steele v. Capital One Bank

Filing 10

ORDER OF SERVICE: The Clerk of Court is directed to mail an information package to Plaintiff. The Clerk of Court is further instructed to issue a summons for Defendant Capital One, N.A., complete the USM-285 form with the address for this defendant, and deliver to the U.S. Marshals Service all documents necessary to effect service. The Court certifies under 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 the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). (Signed by Judge Andrew L. Carter, Jr on 5/22/2023) (ate) Transmission to Pro Se Assistants for processing.

Case 1:23-cv-03745-ALC Document 10 Filed 05/22/23 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BEATRICE SHIRLEY WILLIAMS STEELE,
Plaintiff,
-against-

23-CV-3745 (ALC)
ORDER OF SERVICE

CAPITAL ONE BANK,
Defendant.
ANDREW L. CARTER, JR., United States District Judge:

Plaintiff, who is appearing pro se, brings this action invoking the Court’s federal question
jurisdiction, 28 U.S.C. § 1331. The complaint might also be liberally construed as asserting
claims under the Court’s diversity jurisdiction, 28 U.S.C. § 1332. By order dated May 5, 2023,
the Court granted Plaintiff’s request to proceed in forma pauperis (IFP), that is, without
prepayment of fees.
DISCUSSION
Because Plaintiff has been granted permission to proceed IFP, she is entitled to rely on
the Court and the U.S. Marshals Service to effect service. 1 Walker v. Schult, 717 F.3d. 119, 123
n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve
all process . . . in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (the court must order the Marshals
Service to serve if the plaintiff is authorized to proceed IFP)).

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Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a
summons be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP
and could not have effected service until the Court reviewed the complaint and ordered that the
summons be issued. The Court therefore extends the time to serve until 90 days after the date the
summons is issued.

Case 1:23-cv-03745-ALC Document 10 Filed 05/22/23 Page 2 of 3

To allow Plaintiff to effect service on Defendant Capital One, N.A. (named as Capital
One Bank) through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S.
Marshals Service Process Receipt and Return form (USM-285 form) for Defendant Capital One,
N.A. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals
Service all the paperwork necessary for the Marshals Service to effect service upon Defendant.
If the complaint is not served within 90 days after the date the summons is issued,
Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63
(2d Cir. 2012) (holding that it is the plaintiff’s responsibility to request an extension of time for
service).
Plaintiff must notify the Court in writing if her address changes, and the Court may
dismiss the action if Plaintiff fails to do so.
CONCLUSION
The Clerk of Court is directed to mail an information package to Plaintiff. The Clerk of
Court is further instructed to issue a summons for Defendant Capital One, N.A., complete the
USM-285 form with the address for this defendant, and deliver to the U.S. Marshals Service all
documents necessary to effect service.
The Court certifies under 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 the purpose of an
appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant
demonstrates good faith when he seeks review of a nonfrivolous issue).
Dated:

May 22, 2023
New York, New York
ANDREW L. CARTER, JR.
United States District Judge

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Case 1:23-cv-03745-ALC Document 10 Filed 05/22/23 Page 3 of 3

DEFENDANTS AND SERVICE ADDRESSES
Capital One, N.A.
Capital One Financial Corp.
1680 Capital One Drive
McLean, VA 22102