Moore v. Lassiter et al

Filing 34

ORDER granting Defendants Barrier, Melton, and Slagle 29 Motion to Deem Waiver of Service of Summons Timely Filed. The Clerk is respectfully instructed to docket Exhibit A [Doc. 29-1] as executed Waivers of the Service of S ummons, using the Waiver of Service Executed event, so that the Answer deadline for these Defendants will be properly set to commence on the date of this Order. Signed by Chief Judge Martin Reidinger on 9/9/2021. (Pro se litigant served by US Mail.)(kby)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:20-cv-00058-MR

BENSON MOORE,

)
)
Plaintiff,
)
)
vs.
)
)
KENNETH LASSITER, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on Defendants Brandon Barrier,
Norma Melton, and Mike Slagle’s Motion to Deem Waivers of Service of
Summons Timely Filed [Doc. 29].
This civil rights action was filed by the incarcerated pro se Plaintiff
pursuant to 42 U.S.C. § 1983. The Complaint passed initial review on claims
against Defendants Slagle, Melton, Barrier, and Gladys Jean Campbell on
June 7, 2021, and the Clerk of Court commenced the procedure for waiving
service of process that same day. [See Docs. 19, 20].
On August 13, 2021, seven days beyond the deadline for waiving
service, the North Carolina Department of Public Safety (“NCDPS”) filed the
instant Motion with an attached service waiver for Defendants Barrier,

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Melton, and Slagle.1 [Doc. 29]. NCDPS states that the failure to obtain timely
service waivers for these Defendants was due to an administrative oversight
and excusable neglect over which Defendants Barrier, Melton, and Slagle
had no control. The Plaintiff has not filed a response to the Motion and the
time to do so has expired.
A court may extend the time when an act may or must be done, for
good cause, on a motion made after the time has expired if the party failed
to act because of excusable neglect. Fed. R. Civ. P. 6(b)(1)(B). Excusable
neglect requires consideration of equitable factors such as “danger of
prejudice … the length of delay and its potential impact on the judicial
proceedings, the reason for the delay, including whether it was in the control
of the movant, and whether the movant acted in good faith.” Pioneer Inv.
Serv. Co. v. Brunswick Assoc., 507 U.S. 380, 395 (1993).
The Defendants’ Motion will be granted for good cause shown.
Counsel has demonstrated that the failure to timely waive service was an
administrative oversight, and it is evident that denying the Motion would
unfairly prejudice Defendants Barrier, Melton, and Slagle. The Plaintiff has
failed to suggest that he would be prejudiced by the Court granting the

1

The Court ordered the U.S. Marshals Service to attempt to locate and obtain service on
Defendant Campbell on August 26, 2021. [Doc. 31].
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Motion or that such would unduly delay these proceedings. Accordingly, the
Motion will be granted and Defendants Barrier, Melton, and Slagle’s waiver
of service will be accepted as timely filed.
IT IS, THEREFORE, ORDERED that Defendants Barrier, Melton, and
Slagle Motion to Deem Waiver of Service of Summons Timely Filed [Doc.
14] is GRANTED.
The Clerk is respectfully instructed to docket Exhibit A [Doc. 29-1] as
executed Waivers of the Service of Summons, using the Waiver of Service
Executed event, so that the Answer deadline for these Defendants will be
properly set to commence on the date of this Order.
IT IS SO ORDERED.
Signed: September 9, 2021

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