Coburn v Miller et al

Filing 47

ORDER denying as moot 43 Motion for Entry of Default Judgment in light of the Court's December 8, 2017 Order. The prior summonses issued for Defendants Amin, Battles, Hilligoes, and Mayhem are QUASHED. Plaintiff is granted one extension of time of sixty days from the date of this Order to effect service of process upon Defendants Amin, Battles, Hilligoes, and Mayhem. Signed by Magistrate Judge Charles B Goodwin on 01/12/2018. (jb)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHAD A. COBURN,
Plaintiff,
v.
CHAD MILLER, et al.,
Defendants.

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Case No. CIV-15-642-HE

ORDER
This progress of this case has stalled due to the attempted but unsuccessful service
of Plaintiff’s Complaint on Defendants Mayhem, Amin, Battles, and Hilligoes. On March
28, 2017, the United States Marshals Service (“USMS”) filed “executed” returns of service
for each of these four Defendants, stating that the Defendants had been served but detailing
facts about the method of service that indicated something less than what was required
under the relevant rules and statutes. See Returns (Doc Nos. 25, 26, 27, 28); see also Order
of Dec. 8, 2017 (Doc. No. 42).1 When these Defendants did not answer or otherwise
respond to the Complaint, Plaintiff (after several extensions) filed what was in effect both
a notice of default and a motion for default judgment. See P.’s Mot. (Doc. No. 38). Upon
Plaintiff’s motion, the Court Clerk—acting administratively, that is accepting the returns
of service on their face without evaluating whether service was in fact properly made—
entered default on November 30, 2017, against the four defendants. See Entry of Default

The USMS also filed an “unexecuted” return relating to a fifth defendant: Defendant
Miller. See Return (Doc. No. 29). Plaintiff’s claims against Defendant Miller were
subsequently dismissed. See Order of Sept. 7, 2017 (Doc. No. 33).
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(Doc. No. 41). However, on December 8, 2017, the Court—upon evaluating the attempted
service—denied Plaintiff’s request for judgment and ordered that the entry of default
previously entered be stricken because “the record does not reflect proper service” on the
four defendants. See Order of Dec. 8, 2017 (Doc. No. 42) at 1.2 Plaintiff subsequently
filed a “Motion to Alter Judgment” (Doc. No. 45), which was in effect a motion to
reconsider the December 8, 2017 Order. That motion has been denied. See Order of Jan.
12, 2018 (Doc. No. 46).
The resulting question is whether Plaintiff’s Complaint should be dismissed for
failure to serve the remaining defendants or whether Plaintiff should be provided another
opportunity to attempt to do so. When, as here, the USMS is ordered to attempt service on
a pro se litigant’s behalf, that does not alter the fact that “service is ultimately Plaintiff’s
responsibility.” See Order Requiring Serv. & Special R. (Doc. No. 16) at 2. However,
“when a court finds that service is insufficient but curable, it generally should quash the
service and give the plaintiff an opportunity to re-serve the defendant.” Pell v. Azar Nut
Co., 711 F.2d 949, 950 n.2 (10th Cir. 1983). Moreover, when service by the USMS is
inadequate and there is “no evidence in the record that [a plaintiff] failed to cooperate with
the U.S. Marshals or [was] otherwise not entitled to their service,” a court should not hold
that plaintiff “culpable for [the USMS’s] failure to comply with the Federal Rules of Civil
Procedure or the court’s orders.” Olsen v. Mapes, 333 F.3d 1199, 1205 (10th Cir. 2003).

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On December 13, 2017, Plaintiff filed a separate motion for entry of default judgment
(Doc. No. 43). That motion is DENIED as moot in light of the Court’s December 8, 2017
Order.
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In such case, it is appropriate to grant an extension of time and allow the plaintiff an
opportunity to re-attempt service through the USMS. See Fed. R. Civ. P. 4(m); Olsen, 333
F.3d. at 1205 (finding that “[t]he court should ensure that service is perfected on [the
Defendant] by U.S. Marshal” when Plaintiff was not responsible for the inadequacy of the
original attempt); Silverman v. Prisoner Transp. Serv. of Am., No. CIV-15-1093-F, Order
(W.D. Okla. July 6, 2016) (permitting Plaintiff an opportunity to re-attempt service via the
USMS after the court determined that the USMS’s first attempt—in which they served
process on an employee at defendants’ workplace—was invalid); Gauthier v. Cleveland
Cty. Bd. of Cty. Comm’r, No. CIV-12-58-D, Order at 1-2 (W.D. Okla. Aug. 2, 2012)
(granting an extension of time to effect service and directing re-issuance of process to the
USMS after determining Plaintiff misnamed the defendant); Myers v. Bird, No. CIV-08636-D, Order at 3-4 (W.D. Okla. Dec. 1, 2008) (quashing insufficient service and directing
the USMS to re-attempt service when the original attempt was upon an employee at
defendants’ workplace).
Accordingly, IT IS ORDERED that:
(1) The prior summonses issued for Defendants Amin, Battles, Hilligoes, and
Mayhem are QUASHED.
(2) Plaintiff is granted one extension of time of sixty days from the date of this Order
to effect service of process upon Defendants Amin, Battles, Hilligoes, and
Mayhem.
(3) The Court Clerk is directed to mail to Plaintiff the necessary forms for requesting
the issuance of summonses. Plaintiff must complete these forms and return them
to the Court Clerk, along with sufficient copies of the Complaint to effect service
of process upon each Defendant, within twenty-one days from the date of this
Order. See Order Requiring Service and Special Report (Doc. No. 16) (detailing

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service instructions).
-and(4) Upon receipt of properly completed forms, the Court Clerk will issue
summonses. Because Plaintiff has been granted leave to proceed in forma
pauperis, the USMS shall be authorized to attempt service on Plaintiff’s behalf.
See Fed. R. Civ. P. 4(c)(3).
DATED this 12th day of January, 2018.

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