PERRY v. MILLER et al
Filing
46
MEMORANDUM OPINION DENYING the 36 MOTION to Dismiss re 3 Complaint filed by POLICE CHIEF OF MONESSEN, MONESSEN POLICE DEPARTMENT, CITY OF MONESSEN, MAYOR OF MONESSEN. Signed by Magistrate Judge Lisa Pupo Lenihan on 11/09/2015. (jmb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAMES PERRY,
)
)
Plaintiff,
)
)
v.
)
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RICHARD MILLER; MAGISTRATE
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JOSEPH DEMARCHIS; A.G. SHECHAN )
BALCHON; CITY OF MONESSEN;
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MONESSEN POLICE DEPARTMENT;
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KATHLEEN KANE; POLICE CHIEF OF )
MONESSEN; and MAYOR OF
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MONESSEN,
)
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Defendants.
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Civil Action No. 15-112
Magistrate Judge Lisa Pupo Lenihan
ECF No. 36
MEMORANDUM OPINION
LENIHAN, M.J.
Presently before the Court is a civil rights action filed by Plaintiff, James Perry
(“Plaintiff”), proceeding pro se, against the above-captioned Defendants. Defendants City of
Monessen, Monessen Police Department, Police Chief of Monessen, and Mayor of Monessen
(“Monessen Defendants”) move to dismiss the Complaint (ECF No. 36) for failure to effectuate
timely service of process as required by Federal Rule of Civil Procedure 4(m). For the reasons
discussed below, the Motion will be denied.
At the time of filing of the Complaint, Plaintiff was a pre-trial detainee in the
Westmoreland County Jail. On March 12, 2015, the Court ordered the United States marshal to
mail a copy of the Complaint, notice of the lawsuit, and request for waiver of service to all
Defendants. (ECF No. 7.) On April 28, 2015, the United States marshal filed Notices of
Inability to Effectuate Service on the Monessen Defendants. (ECF Nos. 20, 22, 23, 24.)
On May 13, 2015, Attorney Mark R. Hamilton filed his Notice of Appearance on behalf
of the Monessen Defendants. (ECF No. 25.) Also, on May 13, 2015, Attorney Jeffrey T.
Criswell filed his Notice of Appearance on behalf of the Monessen Defendants.
Federal Rule of Civil Procedure 4(m) provides as follows:
(m) Time Limit for Service. If a defendant is not served within
120 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. This subdivision (m) does not apply to
service in a foreign country under Rule 4(f) or 4(j)(1).
Fed. R. Civ. P. 4(m). The law in this circuit is clear that a district court has wide discretion in
deciding whether to extend time for service even in the absence of a showing of good cause.
Petrucelli v. Bohringer and Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995).
The Monessen Defendants contend that this Court must dismiss the Complaint because
the 120-day period to effectuate service expired on June 1, 2015. As of the date of this Motion,
July 23, 2015, Plaintiff has failed to effectuate service of the Complaint on the Monessen
Defendants. (ECF No. 37 at 2.) Plaintiff did not respond to the Motion.1
Pursuant to Federal Rule of Civil Procedure 4(c)(3), the Court ordered that service be
made by a “United States marshal or deputy marshal or by a person specially appointed by the
court” because the Plaintiff is proceeding pro se pursuant to 28 U.S.C. § 1915. (ECF No. 7.) See
also Fed. R. Civ. P. 4(c)(3).
The Advisory Committee Notes offer the following factors that a district court may
consider in determining whether a discretionary extension is warranted: 1) if the applicable
statute of limitations would bar the refiled action; 2) if the defendant is evading service or
1
Plaintiff was ordered to file a response on August 19, 2015, August 27, 2015, and October 7, 2015 (ECF Nos. 40,
43, & 45.) No response has been filed.
2
concealing a defect in attempted service; and 3) if the plaintiff is appearing pro se—“The district
court should also take care to protect pro se plaintiffs from consequences of confusion or delay
attending the resolution of an in forma pauperis petition.” Fed. R. Civ. P. 4(m) advisory
committee’s note to 1993 amendment.2
Here, Plaintiff is proceeding pro se. Counsel for the Monessen Defendants entered their
appearances just a little over two weeks after the Notices of Inability to Effectuate Service were
filed, and approximately two weeks before the expiration of the 120-day period. The pro se
Plaintiff may have concluded, erroneously, that service had been made by virtue of counsel
entering their appearances.
Therefore, the Court will deny the Monessen Defendants’ Motion to Dismiss (ECF No.
36) and order the United States marshal to take appropriate measures to effectuate service
pursuant to Federal Rule of Civil Procedure 4. The Monessen Defendants are reminded of their
“duty to avoid unnecessary expenses of serving the summons.” See Fed. R. Civ. P. 4(d)(1)&(2).
An appropriate Order will follow.
Dated: November 9, 2015
BY THE COURT:
s/ Lisa Pupo Lenihan
LISA PUPO LENIHAN
United States Magistrate Judge
2
The Court will not conduct a good cause analysis because of the service requirements in Rule 4(c)(3) relating to
the United States marshal and the overriding protections afforded pro se plaintiffs.
3
cc:
All counsel of record
Via electronic filing
James Perry
3495-13
3000 S. Grande Blvd.
Greensburg, PA 15601
4
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