Dunlap v. Lew et al

Filing 4

ORDER denying 3 Motion For Order That Service Be Made By U.S. Marshal. Signed by Magistrate Judge Terence P. Kemp on 9/11/2015. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Ann Ellen Dunlap,
Plaintiff,
v.

:
:
:

Case No. 2:15-cv-2675

:

JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

Jacob Lew, et al.,
Defendants.

:

ORDER
Plaintiff Ann Ellen Dunlap filed a request that the Court
order that service on the defendants be made by the United States
Marshal.

Her filing states, in its entirety:

I, Ann Ellen Dunlap, the Plaintiff in the above
noted action sent summons waiver forms along with a
copy of the Complaint and a self-addressed, stamped
envelope to each Defendant on Aug. 5, 2015 via priority
mail. It has now been 30 days and none of the
Defendants have responded. I am requesting this
Article III, Constitutional court to “order that
service be made by a U.S. marshal or deputy marshal or
by a person specially appointed by the court” to all
Defendants pursuant to Rule 4(c)93) of the Federal
Rules of Civil Procedure. Please send confirmation
that this was completed to me at the above given
address.
She has enclosed a copy of the USPS tracking numbers for the
mailings.
Ms. Dunlap has paid the full filing fee and is not
proceeding in forma pauperis.

As she correctly notes,

Fed.R.Civ.P. 4(c)(3) authorizes federal courts to order that
service be made by a United States marshal or other person
appointed by the Court upon request by a plaintiff.

In cases

where a plaintiff has been granted leave to proceed in forma

pauperis pursuant to 28 U.S.C. §1915, that Rule requires courts
to order such service.

However, for fee-paying plaintiffs, it is

within the Court’s discretion to order service of process by a
United States marshal or deputy marshal or by a person specially
appointed by the court.

See Advisory Committee Notes (1993

Amendments).
Ms. Dunlap has not provided any information beyond her
statement that the defendants have not returned the service
waivers.

She does not explain any additional efforts she has

undertaken, pursuant to Rule 4(e), to complete service on the
individual defendants.

In short, she sets forth no specific

reason for requesting such service.

Further, Ms. Dunlap appears

to be unaware that, even if the Court were to grant her request,
she is not entitled to use this method of service at no cost.
See Alamiin v. Jones, Slip Copy, 2013 WL 5972472 (W.D. Okla. Nov.
8, 2013), citing 28 U.S.C. §1921(a)(1)(A); 28 C.F.R. §0.114.
Faced with a similar situation, the court in Victor v.
Huber, 2012 WL 1677360 (M.D. Pa. March 30, 2012), adopted and
affirmed 2012 WL 1677342 (M.D. Pa. May 14, 2012), explained:
We recognize that Rule 4(c)(3) of the Federal
Rules of Civil Procedure authorizes federal courts to
order that service by made by a United States marshal
or other person appointed by the Court upon request by
a plaintiff. Fed.R.Civ.P. 4(c)(3). However, at this
time we do not find that the plaintiff has sufficiently
supported his request to have the Court direct service
to be made in this case. Instead, Victor has done
nothing more than request that the Court effect service
on the remaining defendants, without explaining why the
Court’s assistance is being requested, or why such
assistance [is] warranted. Thus, although we are
permitted to grant this relief, we will require the
plaintiff to do more before we embrace this bare
request, particularly because, given the volume of
inmate litigation pending in this district, the Court
is frequently called upon to direct the United States
Marshal to effect service, and we wish to limit the
burden to which we place that office in these matters
-2-

unless required or clearly warranted.
Id. at *3.
The Court finds this explanation equally applicable here.
Consequently, because Ms. Dunlap has not set forth any good
cause in support of her request, the Court declines to order the
requested service.
For these reasons, the request to order service under
Fed.R.Civ.P. 4(c)(3) (Doc. 3) is denied.
MOTION FOR RECONSIDERATION
Any party may, within fourteen days after this Order
is filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

-3-