Bush v. The Chancery Court of Knox County, Tennessee, Probate Court (TV1)

Filing 49

ORDER granting in part and denying in part 45 Motion to Compel. The Court ORDERS Defendants Godwin, John R. Bush, and Nancy Bush to respond to the Complaint within thirty days of entry of this Order. The Clerk of Court is DIREC TED to mail this Order to Defendants Robert Godwin, John R. Bush, and Nancy Bush at the address provided in Docs. 41, 42, and 43. Signed by Magistrate Judge C Clifford Shirley, Jr on 4/18/17. (c/m to Plaintiff and Defendants Robert Godwin, John R. Bush, and Nancy Bush) (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
THOMAS K. BUSH,

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Plaintiff,
v.
ROBERT GODWIN, et al.,
Defendants.

No. 3:15-cv-524-TAV-CCS

ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and the referral Order [Doc. 46] of the Chief District Judge.
Now before the Court is a Motion to Compel Order [Doc. 45]. In the Plaintiff’s Motion,
he requests the following relief: (1) that Defendants Godwin, John R. Bush, and Nancy Bush
provide the correct mailing address of Defendants John Joseph Bush and Rebecca Bush; (2)
compel Defendants Robert Godwin, John R. Bush, and Nancy Bush to file a responsive pleading
or to permit the Plaintiff to file a default judgment; (3) direct the U.S. Marshals to serve Defendants
D. Scott Hurley and Ryan Shamblin or to permit the Plaintiff to file a default judgment; (4) issue
bench warrants for Defendants D. Scott Hurley and Ryan Shamblin; (5) grant a pre-arrest hearing
for all of the Defendants; and (6) to join the United States Attorney for the Eastern District of
Tennessee as a party to this action.
With respect to the Plaintiff’s request to compel Defendants Godwin, John R. Bush, and
Nancy Bush to provide the addresses of John Joseph Bush and Rebecca Bush, the Court DENIES
this request. With respect to John Joseph Bush’s address, the Court notes that on April 7, 2017,
the Plaintiff filed a Notice of Service of Complaint [Doc. 48], providing John Joseph Bush’s

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address. Because Plaintiff has John Bush’s address, this request is moot. With respect to obtaining
Rebecca Bush’s address, the Court notes that the Plaintiff has not provided any explanation as to
why he may lack the ability to locate Rebecca Bush’s address, nor has he explained any effort to
do so. See Fed. R. Civ. P. 4(c)(1) (“The plaintiff is responsible for having the summons and
complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to
the person who makes service.”). Accordingly, the Court finds Plaintiff’s request not well-taken.
The Plaintiff also requests that the Court order Defendants Godwin, John R. Bush, and
Nancy Bush to file a responsive pleading. It appears to the Court that these Defendants have been
served [Docs. 41, 42, and 43]. Accordingly, the Court ORDERS Defendants Godwin, John R.
Bush, and Nancy Bush to respond to the Complaint within thirty days of entry of this Order. If
these Defendants fail to file a response, the Plaintiff may move for entry of default pursuant to
Federal Rule of Civil Procedure 55. The Clerk of Court is DIRECTED to mail this Order to
Defendants Robert Godwin, John R. Bush, and Nancy Bush at the address provided in Docs. 41,
42, and 43.
Further, the Plaintiff requests that the U.S. Marshals serve Defendants D. Scott Hurley and
Ryan Shamblin or that the Court allow Plaintiff to file a default judgment. As acknowledged by
the Plaintiff, these Defendants have not been served, and therefore, a default judgment is not
appropriate. Further, the Court notes that Federal Rule of Civil Procedure 4(c)(3) provides:
At the plaintiff’s request, the court may order that service be made
by a United States marshal or deputy marshal or by a personally
specially appointed by the court. The court must so order if the
plaintiff is authorized to proceed in forma pauperis under 28 U.S.C.
§ 1915 or as a seaman under 28 U.S.C. § 1916.
The latter provision requiring the Court to order the U.S. Marshals to serve does not apply
because the Plaintiff is not proceeding in forma pauperis or as a seaman. The word “may” gives

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the Court the discretion to direct the United States Marshals to effect service in other cases. See
also Ovallee v. Fresno Bee Newspapers, No. CV-08-6751, 2009 WL 398094, *1 (C.D. Cal. Feb.
13, 2009). The Advisory Committee Notes provide some direction as to when the Court should
direct the United States Marshal to serve defendants, i.e., when a law enforcement officer’s
presence appears to be necessary or advisable to keep the peace. The Court finds that this does
not appear to be a case wherein a law enforcement officer’s presence is necessary. Further, the
Plaintiff has not provided any evidence of his lack of ability or resources to effect service. Id.
Accordingly, the Court finds that the Plaintiff has not established that he has exhausted other
reasonable methods of effecting service and the Court declines to order the United States Marshals
to serve the Defendants at this time.
With respect to the Plaintiff’s requests to issue bench warrants for Defendants D. Scott
Hurley and Ryan Shamblin and to grant a pre-arrest hearing for all the Defendants, these requests
are DENIED. The Plaintiff fails to explain why the Court would issue a bench warrant for these
Defendants and it is not clear what the Plaintiff means by a “pre-arrest hearing.” Finally, the
Plaintiff’s request to join the United States Attorney in this action is denied for similar reasons.
The Plaintiff has not provided the Court with any argument as to why the United States Attorney
should be joined in this action. Accordingly, the Plaintiff’s Motion to Compel Order [Doc. 45] is
GRANTED IN PART AND DENIED IN PART.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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