Griggs v. Schmauss et al
Filing
21
DECISION AND ORDER denying 19 Motion for Default Judgment and extending time for service to June 30, 2020. Signed by Hon. Elizabeth A. Wolford on 05/26/2020. (CDH) (Main Document 21 replaced on 5/26/2020) (CDH).
Case 6:17-cv-06456-EAW Document 21 Filed 05/26/20 Page 1 of 3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PERRY GRIGGS,
Plaintiff,
DECISION AND ORDER
v.
6:17-CV-06456 EAW
R. SCHMAUSS, DDS,
Defendant.
_______________________________________
Pro se plaintiff Perry Griggs (“Plaintiff”), an inmate confined at the Elmira
Correctional Facility, alleges a claim of deliberate indifference to his serious medical needs
against defendant R. Schmauss, DDS (“Defendant”). (Dkt. 12). On January 17, 2018, the
Hon. Michael A. Telesca granted Plaintiff leave to proceed in forma pauperis. (Dkt. 6).
On October 31, 2019, Judge Telesca directed service of the Second Amended Complaint
(the operative pleading in this matter) on Defendant by the United States Marshals Service
(the “USMS”). (Dkt. 17).
On January 9, 2020, the Summons was returned unexecuted as to Defendant. (Dkt.
18). On February 20, 2020, Plaintiff filed a motion for default judgment. (Dkt. 19). The
case was transferred to the undersigned on March 19, 2020. (Dkt. 20). On April 2, 2020,
the Clerk of Court reissued the Summons as to Defendant and forwarded the same to the
USMS to reattempt service.
Plaintiff’s motion for a default judgment (Dkt. 19) is denied. “It is basic that in
order for a default judgment to be taken against a defendant, a plaintiff must show that the
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Case 6:17-cv-06456-EAW Document 21 Filed 05/26/20 Page 2 of 3
defendant has been served and that personal jurisdiction over the defendant was thereby
acquired.” Goossens v. Wade, No. 08-CV-446F, 2010 WL 2649882, at *2 (W.D.N.Y. June
29, 2010). In this case, as discussed above, Defendant has not yet been served, and so no
default judgment can issue.1
The Court notes that Defendant has not been served within the time period required
by Federal Rule of Civil Procedure 4(m). In light of Plaintiff’s pro se status and the
apparent difficulty the USMS has had in serving Defendant, the Court will sua sponte
extend Plaintiff’s deadline to serve Defendant to June 30, 2020. See Gibson v. Smith, No.
6:17-CV-6449 (MAT), 2017 WL 5622950, at *3 (W.D.N.Y. Nov. 22, 2017) (extending
time for service sua sponte “in light of plaintiff’s pro se status and his efforts to effect
service”). However, Plaintiff is cautioned that if service has not been completed by that
date, it is his obligation to seek a further extension. See Meilleur v. Strong, 682 F.3d 56,
63 (2d Cir. 2012) (“If a plaintiff proceeding [in forma pauperis] chooses to rely on the
Marshals to serve the relevant parties, and it becomes apparent that the Marshals will not
accomplish this by the Rule 4(m) or court-ordered deadline, she must advise the district
court that she is relying on the Marshals to effect service and request a further extension of
time for them to do so.”).
1
Even had Defendant been served, Plaintiff has not complied with Federal Rule of
Civil Procedure 55, which requires him to obtain a Clerk’s entry of default prior to filing a
motion for default judgment. This is a further, independent basis for denial of Plaintiff’s
motion.
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Case 6:17-cv-06456-EAW Document 21 Filed 05/26/20 Page 3 of 3
SO ORDERED.
_________________________________
ELIZABETH A. WOLFORD
United States District Judge
Dated:
May 26, 2020
Rochester, New York
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