Ross v. Teleperformance USA Inc et al

Filing 12

ORDER AND NOTICE TO PLAINTIFF - IT IS THEREFORE ORDERED THAT: Plaintiffs Application to Clerk for Entry of Default Judgment (Doc. 10 ) is DENIED and her Motion to Amend Complaint (Doc. 9 ) remains pending. Signed by Magistrate Judge Sharon L Ovington on 4/17/2013. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KEESYA D. ROSS,

:

Plaintiff,

:
:

vs.
TELEPERFORMANCE USA,
INC., et al.,

Case No. 3:13cv00038
District Judge Timothy S. Black
Magistrate Judge Sharon L. Ovington

:
:

Defendants.
:

ORDER AND NOTICE TO PLAINTIFF

Plaintiff Keesya D. Ross filed this case pro se on February 6, 2013. She was
granted leave to proceed in forma pauperis. Service of process was temporarily held
pending the Court’s initial review of the Complaint as required by 28 U.S.C. §1915.
Shortly after the Court issued its Decision and Entry concerning the initial review
of Plaintiff’s Complaint, summons was re-issued and Plaintiff filed a Motion to Amend
Complaint. (Doc. #s 8, 9).
Most recently, Plaintiff filed an Application to Clerk for Entry of Default against
Teleperformance USA, Inc, et al. (Doc. #10). Plaintiff’s Application is premature
because the record presently contains no return of service “executed” or some other
indication that service of process has been accomplished upon the remaining named
defendants. This is no small problem.

“Due process requires proper service of process for a court to have jurisdiction to
adjudicate the rights of the parties.” O.J. Distrib., Inc. v. Hornell Brewing Co., Inc., 340
F.3d 345, 353 (6th Cir. 2003). Where service has not yet occurred, and time remains for a
plaintiff to effect service, entry of default is unwarranted. See id. (and cases cited
therein); see also Ohio St. Plumbers & Pipefitters Health & Welfare Fund v. Absolute
Air, Inc., 2010 WL 3447562 (Aug. 27, 2010)(Deavers, M.J.).
Time remains for Plaintiff to effect service. Under Fed. R. Civ. P. 4(m), a party
must effect service of process within 120 days after the Complaint is filed. Because
Plaintiff was authorized to effect service on March 8, 2013 (Doc. #8), she has 120 days
from that date to accomplish service of summons and Complaint – through the U.S.
Marshall – upon the remaining named defendants. Plaintiff is placed on NOTICE that, in
the event she does not effect timely service of summons and her Complaint, her case may
be dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m).
IT IS THEREFORE ORDERED THAT:
Plaintiff’s Application to Clerk for Entry of Default Judgment (Doc. #10) is
DENIED and her Motion to Amend Complaint (Doc. #9) remains pending.

April 17, 2013
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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