Harding v. Schetter et al

Filing 18

ORDER granting 16 Motion to Deem Waiver of Service of Summons Timely. The Clerk of Court will send a copy of this Order and Docket No. 17 to the U.S. Marshals Service. The U.S. Marshal shall use reasonable efforts to loca te and obtain service on Defendant Schetter in accordance with the terms of this Order. IT IS FURTHER ORDERED that The NCDPS has an additional 45 days to complete its investigation and, if appropriate, answer or otherwise respond to Plaintiff's Complaint in accordance with this Order.The Clerk is respectfully instructed to update the docket in this matter to reflect Defendant FNU Moody's true full name, Michael Moody. Signed by Chief Judge Martin Reidinger on 9/6/2021. (Pro se litigant served by US Mail.) (hms)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:20-cv-00340-MR
KEITH HARDING,

)
)
Plaintiff,
)
)
vs.
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FNU SCHETTER, et al.,
)
)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on its own motion and on a Motion
to Deems Waivers of Service of Summons Timely Filed, [Doc. 16].
On March 10, 2021, Plaintiff’s Complaint survived this Court’s frivolity
review against Defendants FNU Schetter and FNU Moody. [Doc. 9]. After
Plaintiff failed to amend his complaint as allowed by the Court’s initial review
Order, the Court ordered the Clerk of Court to begin the procedure for waiver
of service as set forth in Local Civil Rule 4.3 for Defendants. [Doc. 10]. On
August 31, 2021, the North Carolina Department of Public Safety (NCDPS)
filed a document under seal indicating it was unable to procure a waiver of
service for Defendant Schetter for the reasons stated in that document.
[Doc. 17].

The sealed document provides the last known address for

Defendant Schetter, which is in the State of Louisiana. [See id.].

Case 1:20-cv-00340-MR Document 18 Filed 09/07/21 Page 1 of 4

Generally, a plaintiff is responsible for effectuating service on each
named Defendant within the time frame set forth in Fed. R. Civ. P. 4(m), and
failure to do so renders the action subject to dismissal. However, pursuant
to 28 U.S.C. § 1915(d), if the civil action of a prisoner who is proceeding in
forma pauperis survives initial review under 28 U.S.C. §§ 1915(e)(2), “[t]he
officers of the court shall issue and serve all process, and perform all duties
in such cases.” 28 U.S.C. § 1915(d). Further, under Rule 4(c)(3) of the
Federal Rules of Civil Procedure, the Court must “order that service be made
by a United States marshal or deputy marshal or by a person specially
appointed by the court” “if plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915.” Fed. R. Civ. P. 4(c)(3).
Where an individual defendant is a non-resident, service may proceed
according to Rule 4(e), which provides that such defendant may be served
by “following state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court is located or where
service is made.” Fed. R. Civ. P. 4(e). Rule 4(j)(1)(c) of the North Carolina
Rules of Civil Procedure permits service “[b]y mailing a copy of the summons
and of the complaint, registered or certified mail, return receipt requested,
addressed to the party to be served, and delivering to the addressee.” N.C.
Gen. Stat. § 1A-1, Rule 4(j)(1)(c).
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Here, despite that a request for a waiver of service was submitted to
the NCDPS, no waiver from Defendant Schetter was obtained and it appears
that Defendant Schetter did not receive service of process.

With the

additional information supplied for service on Defendant Schetter, the U.S.
Marshal is hereby ordered to use reasonable efforts to locate and obtain
service on Defendant in accordance with Rule 4 of the North Carolina Rules
of Civil Procedure, as described above.
To that end, the Court will direct the Clerk of Court to provide a copy of
Docket No. 17 to the U.S. Marshal for its eyes only for the sole purpose of
serving Defendant Schetter.
Also before the Court is a motion filed by the NCDPS to deem the
waiver of service executed by Defendant Moody timely filed.1 [Doc. 16]. The
NCDPS also requests an additional 45 days to complete its investigation
regarding whether it will provide a defense to Defendant Moody and, if so,
allow an attorney to make an appearance and/or file a responsive pleading.
[Id. at 3]. For the reasons stated therein, the Court will grant the NCDPS’s
motion to deem Defendant Moody’s waiver of service timely filed and to allow
the NCDPS 45 days from this Order to investigate and, if appropriate, to file

The Waiver shows Defendant FNU Moody’s true full name as Michael Moody. [See Doc.
16-1]. The Court will order the Clerk to update the docket in this matter accordingly.
1

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a responsive pleading on behalf of Defendant Moody.
ORDER
IT IS, THEREFORE, ORDERED that the Clerk of Court will send a
copy of this Order and Docket No. 17 to the U.S. Marshals Service. The U.S.
Marshal shall use reasonable efforts to locate and obtain service on
Defendant Schetter in accordance with the terms of this Order.
IT IS FURTHER ORDERED that the NCDPS Motion to Deem Waiver
of Service of Summons Timely Filed [Doc. 16] is GRANTED. The NCDPS
has an additional 45 days to complete its investigation and, if appropriate,
answer or otherwise response to Plaintiff’s Complaint in accordance with this
Order.
The Clerk is respectfully instructed to update the docket in this matter
to reflect Defendant FNU Moody’s true full name, Michael Moody.
IT IS SO ORDERED.

Signed: September 6, 2021

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