MARSHALL v CORBETT et al

Filing 15

ORDER denying 12 Motion for Reconsideration, Plaintiff is ORDERED to supply the necessary number of copies of the service papers by February 4, 2015. Failure to do so may result in the dismissal of the suit for failure to prosecute. Signed by Chief Magistrate Judge Maureen P. Kelly on 12-5-2014. A copy of the Order together with this Notice of Electronic Filing are being sent to Plaintiff at his address of record. (tmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KERRY X MARSHALL,
)
also known as KERRY X [MARSHALL], )
Plaintiff,
)
)
vs.
)
)
TOM CORBETT; JOHN WETZEL;
)
JOHN DOE #1; ANDREA
)
PRIORI-MEINTEL; ULLI KLEMM;
)
CRAIG COOPER; MARGARET
)
GORDON; MARCIA NOLES; RANDY
)
MCELRAVY; MICHAEL MICHLIN;
)
JEFFREY DITTY; LYDIA HALE;
)
ADEEB RASHEED; JODY SMITH;
)
DORINA VARNER; BRIAN COLEMAN; )
JOHN DOES #2-7; DEBRA
)
HAWKINBERRY,
)
Defendants. )

Civil Action No. 14-1210
Chief Magistrate Judge Maureen P. Kelly

Re: ECF No. 12

ORDER
Kerry X, also known as Kerry Marshall, (“Plaintiff”) is serving a life sentence for
murder. Plaintiff was granted leave to proceed in forma pauperis, ECF No. 5, and his Complaint
was filed. ECF No. 6.
Plaintiff previously filed a Motion for Permission to Forego Service of the Complaint to
Numerous Defendants (“Motion to Not Supply Service Papers”). ECF No. 9. In that Motion to
Not Supply Service Papers, Plaintiff sought to supply this court with only two service copies of
the Complaint, one to be served on the Governor and because 22 of the Defendants have the
same business address and because all the defendants will have the same counsel, a second
service copy of the Complaint to be served on all the 22 Defendants other than the Governor at
the one business address. ECF No. 9 at ¶¶ 3 – 4. This Court denied that Motion to Not Supply
Service Papers by order dated November 5, 2014. ECF No. 10. Now, Plaintiff has filed a

Motion for Reconsideration of that Order, ECF No. 12 and a Brief in Support of the Motion for
Reconsideration. ECF No. 13. For the following reasons, the Motion for Reconsideration will
be denied.
"The purpose of a motion for reconsideration is to correct manifest errors of law or fact
or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.
1985). “The standard plaintiff must meet to prevail on a motion for reconsideration is high[.]”
Berry v. Jacobs IMC, LLC, 99 F. App’x 405, 410 (3d Cir. 2004). In order to merit the grant of a
motion for reconsideration, the moving party must establish: “(1) an intervening change in the
controlling law; (2) the availability of new evidence that was not available when the court
granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact
or to prevent manifest injustice.” Max's Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999). After considering Plaintiff’s arguments, Plaintiff fails to meet the
high standards for meriting the grant of a motion for reconsideration.
Plaintiff makes two arguments for our reconsideration. First, he cites to Fed.R.Civ.P. 5
for the proposition that where there are numerous defendants, the Plaintiff may be excused from
serving original process, i.e., the Complaint, on them. ECF No. 12 at 5 (“F.R.Civ.P., Rule 5(c)
requires the service of the complaint on defendant, just not on each defendant.”). However,
Fed.R.Civ.P. 5 does not excuse a Plaintiff from the obligation of providing sufficient copies of
the complaint in order for each defendant to be served. Rule 5(c) provides in full as follows:
(c) Serving Numerous Defendants.
(1) In General. If an action involves an unusually large number of
defendants, the court may, on motion or on its own, order that:
(A) defendants' pleadings and replies to them need not be served on
other defendants;

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(B) any crossclaim, counterclaim, avoidance, or affirmative defense in
those pleadings and replies to them will be treated as denied or
avoided by all other parties; and
(C) filing any such pleading and serving it on the plaintiff constitutes
notice of the pleading to all parties.
By its plain language Rule 5(c)(1) only excuses the filing of “defendants’ pleadings” not the
Plaintiff from serving the Complaint on each Defendant. No other words in Rule 5(c) authorize
the excusing of the Plaintiff from providing sufficient copies of the complaint for service. Rule
5(c) does not provide a basis for excusing Plaintiff from providing service copies.
Next Plaintiff claims that the United States District Court for the Middle District of
Pennsylvania “under ‘identical’ circumstances as this . . . had granted an ‘identical’ ‘motion for
permission to forego service of complaint on numerous Defendants under Rule 5(c)’ to Plaintiff
in Plaintiff’s Civil Action No. 3:12-0351.” ECF No. 13 at 2 (citing Marshall v. Pa. D.O.C., No.
3:12-0351 (M.D. Pa. ECF No. 21). We are not persuaded.
First, even if Plaintiff were correct, the United States District Court decision would be
merely persuasive authority to this Court, not mandatory. Given the language of Rule 5(c), we
would not be persuaded by that Court’s decision to excuse Plaintiff from providing necessary
service copies in this case, if, in fact, the United States District Court for the Middle District did
what Plaintiff said it did. Secondly, the United States District Court for the Middle District did
not grant Plaintiff’s Motion for Permission to Forego Service because no such motion exists on
the docket of Marshall v. Pa. D.O.C., No. 3:12-0351 (M.D. Pa.). The specific order that
Plaintiff cites to in Marshall v. Pa. D.O.C., is ECF No. 21, which is simply an order granting
Plaintiff’s Motion for Leave to Proceed In Forma Pauperis and ordering the Marshal to serve
Plaintiff’s Complaint on the Defendants. The order does not specifically address the issue of
whether Plaintiff can be excused from providing the necessary copies of the Complaint to serve
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each defendant. Accordingly, Plaintiff’s citation to the ECF No. 21 in Marshall v. Pa. D.O.C.,
No. 3:12-0351 (M.D. Pa.) does not persuade this Court that we committed an error of law in
requiring Plaintiff to provide the necessary number of copies of the Complaint.
Lastly, Plaintiff complains that he does not have the money to make sufficient copies, he
may provide identical hand copies of the required number of complaints. As for his complaint
that he may not have sufficient funds for mailing, we note that Plaintiff had, as recently as
September 16, 2014, $118.70 in his inmate trust account. ECF No. 11 at 1. His six month
account statement belies the fact that he cannot afford the postage.
Accordingly, the following order is entered:
AND NOW, this 5th day of December 2014, it is hereby ORDERED that the Plaintiff's
Motion for Reconsideration, is DENIED. Plaintiff is now ORDERED to provide to the court the
necessary number of copies of the Complaint together with 23 copies of completed United States
Marshal Form 285s and 23 completed notices of lawsuit and requests for waiver of service.
Plaintiff is ORDERED to provide all of the necessary copies no later than February 4, 2015.
Failure to do so may result in the case being dismissed for failure to prosecute. Plaintiff has been
warned.
BY THE COURT:
/s/Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE
Date: December 5, 2014
cc:

Kerry X. Marshall
BE-7826
SCI Rockview
Box A
Bellefonte, PA 16823

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