Nored v. Cuoco

Filing 12

ORDER denying 9 Plaintiff's Motion to Amend; denying 10 Plaintiff's Motion for Cause and Just Compensation; denying 11 Plaintiff's Motion for Service of Mr. Cuoco via email. IT IS ORDERED THAT: (1) To the extent it has not alrea dy done so, the U.S. Marshal shall serve YouTube in accordance with the forms provided by Plaintiff on 5/23/2017; (2) Plaintiff's motion for an extension of time to locate Mr. Cuoco 11 is GRANTED IN PART. On or before 8/15/2017, Plainti ff shall complete a new summons form and U.S. Marshal form in order to effectuate service on Defendant John A. Cuoco. Signed by Magistrate Judge Stephanie K. Bowman on 6/12/2017. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
COLONEL ANTONIO NORED

Case No. 1:17-cv-134

Plaintiff,

Barrett, J.
Bowman, M.J.

v.

JOHN A. CUOCO,
Defendant.

OPINION AND ORDER
On March 1, 2017, Plaintiff, proceeding pro se, filed a motion to proceed in forma
pauperis and attached his tendered complaint against the individual Defendant, John A.
Cuoco. In a brief complaint, Plaintiff alleges that the Defendant has infringed upon
Plaintiff’s copyrighted work by publishing it, without Plaintiff’s consent, on the internet.
According to Plaintiff, his copyright is identified by registration number Pau 000525858.
On initial screening, the Court concluded that Plaintiff’s complaint did not appear
to be facially frivolous or malicious.

Therefore, the Court directed service of the

complaint upon Mr. Cuoco. However, on April 24, 2017, the summons form that Plaintiff
completed was returned unexecuted. The attempt to serve Mr. Cuoco reflects that he
no longer lives at the address listed by Plaintiff, and that the U.S. Postal Service was
“unable to forward.”
On May 2, 2017, the Court granted Plaintiff’s motion to amend his complaint to
add a new copyright claim against a newly identified Defendant, YouTube. At the same
time, based upon the failure of Plaintiff to provide a valid address for the individual

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Defendant, Mr. Cuoco, the Court admonished Plaintiff that “[i]t remains [his]
responsibility to identify Mr. Cuoco’s correct address for purposes of service on that
Defendant, without which suit may not proceed against him.” (Doc. 8).
The docket sheet reflects that on May 23, 2017, Plaintiff transmitted to the
Clerk’s office copies of forms required for service on YouTube, but that he has not yet
returned forms for service on Mr. Cuoco. At of today’s date, service has not been
perfected on either YouTube or Mr. Cuoco.
Although the Court will bear the costs of service for a litigant who proceeds in
forma pauperis, it remains Plaintiff’s sole responsibility to provide the Court with the
requisite forms and a proper address through which service can be made. Plaintiff has
yet to provide an address for Mr. Cuoco, but he has filed three motions since entry of
the Court’s last order.
First, on May 8, 2017, Plaintiff filed a “motion to amend” in which he seeks an
order of this Court directing YouTube to inform him of Defendant Cuoco’s address. The
motion goes on to seek the same type of injunctive and monetary relief sought by
Plaintiff in his complaint, and states that Plaintiff seeks “to add in my second copyright
which I neglected to include in my initial complaint.” (Doc. 9). Plaintiff’s motion will be
denied on procedural grounds.
The motion appears to combine a discovery request with an irregular motion to
further amend Plaintiff’s complaint.

Despite alluding to further amendment of the

complaint, Plaintiff has failed to attach as an exhibit to his motion a copy of the tendered
second amended complaint. In addition, YouTube has not yet been served with the
original complaint, which Plaintiff has already amended once as of right. Even if the

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motion to further amend Plaintiff’s complaint were properly formatted, which it is not, the
Court would not be inclined to grant Plaintiff leave to continually amend without
permitting Defendant(s) to file a response. Moreover, prior to YouTube entering an
appearance in this litigation, discovery from YouTube is premature. If and/or when
YouTube is served with Plaintiff’s complaint, as amended, and a scheduling order is
entered in this case, at that time Plaintiff may serve formal discovery requests on
YouTube in accordance with the Federal Rules of Civil Procedure.

However, no

grounds exist at the present time for this Court to direct YouTube to supply Plaintiff with
the information he seeks concerning Mr. Cuoco’s “present location.” (Doc. 9 at 1).
In addition to the “motion to amend,” Plaintiff has filed a “motion for cause and
just compensation.” (Doc. 10). This second motion also will be denied on procedural
grounds.

The motion “demand[s] to know why YouTube is broadcasting my video

without my permission,” and asks YouTube to “show cause why I should not be
compensated for loss of sales which by YouTube[‘s] own admission that the number of
viewers have numbers in the thousands I ask the YouTube [to] pay punitive damages to
me of no less than 100,000 dollars.” (Doc. 10). Again, absent service on YouTube and
progression of this case in a manner consistent with a scheduling order, the motion is
premature. To the extent that the motion appears to seek the ultimate relief sought by
Plaintiff in the underlying complaint, such relief may not be granted by motion, other
than through the filing of a dispositive motion (such as a motion for summary judgment
under Rule 56), which is not typically filed prior to the conclusion of discovery.
Third, Plaintiff has filed a “motion for acceptance of E-mail Address or More Time
to Find Physical Address” of Defendant Cuoco. Plaintiff explains that he has “searched

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diligently” for Mr. Cuoco’s physical address but to date, has been able to locate only an
email address identified as [e-mail]

Plaintiff asks this Court to

serve Mr. Cuoco by email or, alternatively, to permit him more time to locate a physical
address for that Defendant.
The Federal Rules of Civil Procedure do not permit service by email based on
the circumstances that Plaintiff presents. 1

However, the Court will grant Plaintiff’s

request for additional time to complete a new summons form and U.S. Marshal form for
service upon Mr. Cuoco at a physical address. Rule 4(m) of the Federal Rules of Civil
Procedure states, in relevant part:
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.
Id.
Plaintiff’s complaint was filed on March 10, 2017; his first amended complaint
was filed on April 13, 2017. Under Rule 4(m), Plaintiff is required to serve his amended
complaint not later than July 12, 2017, absent a showing of “good cause” for an
extension of time.

Although the Court will extend time for Plaintiff to complete the

necessary forms for service on Mr. Cuoco at this time, Plaintiff is forewarned that his
pro se status does not entitle him to endless extensions of the time period for
service.
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Only in exceptionally rare cases, such as when an individual foreign defendant resides in a country that
is not a party to the Hague Convention and after proof that all attempts at service by traditional mail or
personal service have failed, has this Court permitted a plaintiff to attempt service via email. It is highly
unlikely that such service would ever be permitted in this case, since there is no indication that Mr. Cuoco
resides in a country other than the United States, and neither service by mail nor personal service have
not yet been attempted. See generally Rule 4(f), Fed. R. Civ. P. (serving an individual in a foreign
country).

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Last, it is apparent to this Court that Plaintiff, who proceeds without benefit of
counsel, may be unfamiliar with the Local Rules of this Court and/or with the Federal
Rules of Civil Procedure.

The Court website includes a link to helpful materials under

the heading “Representing Yourself,” including a copy of the Local Civil Rules.
http://www.ohsd.uscourts.gov/ Notwithstanding the difficulties an unrepresented litigant
may face, he or she is required to comply with all rules of civil procedure, and all orders
of this Court.

A failure to do so may result in undesired consequences, including

sanctions up to and including dismissal of a plaintiff’s case.
Accordingly, IT IS ORDERED THAT:
1. To the extent it has not already done so, the U.S. Marshal shall serve
YouTube in accordance with the forms provided by Plaintiff on May 23, 2017;
2. Plaintiff’s motion for an extension of time to locate Mr. Cuoco (Doc. 11) is
GRANTED IN PART. On or before August 15, 2017, Plaintiff shall complete
a new summons form and U.S. Marshal form in order to effectuate service on
Defendant John A. Cuoco;
3. Plaintiff’s motion to amend, his motion for cause and just compensation, and
his motion for service of Mr. Cuoco via email (Docs. 9, 10, 11) are DENIED.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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