Kartiganer v. Juab County et al

Filing 44

MEMORANDUM DECISION AND ORDERdenying 39 Motion ; denying 42 Motion for Joinder. Signed by Judge Clark Waddoups on 11/7/11. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

ADAM KARTIGANER,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 2:10-CV-842

JUAB COUNTY, HOBY METZ, MAY
AUTOMOTIVE TOWING, and BARRY C .
CONOVER,

Judge Clark Waddoups

Defendants.

Before the court are Defendants’ motions to reconsider this court’s memorandum
decision and order. (Dkt. No. 24.) Defendants argue that the court erred in its reasoning by
failing to recognize that a plaintiff proceeding in forma pauperis must request service under Fed.
R. Civ. P. 4(c)(3), pursuant to such cases as Rochon v. Dawson, 828 F.2d 1107 (5th Cir. 1987).1
To the contrary, the Tenth Circuit has stated definitively that an in forma pauperis plaintiff need
not request such service. See Olsen v. Mapes, 333 F.3d 1199, 1204 n.4 (10th Cir. 2003) (stating,
“[t]he current version of Rule 4 does not indicate that a request is necessary.”). Indeed, the Tenth
Circuit has explicitly rejected Rochon. Id. As such, Defendants’ motions to effectively
disregard the Tenth Circuit’s guidance are DENIED. (Dkt. No. 39, 42.)

1

The Defendants also rely on instructions from the Pro Se Litigant Guide for the District Court of Utah for the
proposition that a pro se litigant must request the court to order service by the U.S. Marshal. The Defendants
misread the instructions. These instructions are directed to all pro se litigants – not just those proceedings in forma
pauperis. Fed. R. Civ. P. 4(c)(3) makes it mandatory for the court to order service by the U.S. Marshal if a plaintiff
is proceeding in forma pauperis, without any precondition that such a plaintiff make a request.

Insofar as Defendants are concerned with the court’s statement that they have submitted
to the jurisdiction of the court, the court clarifies that Defendants were simply deemed to have
been served. Fed. R. Civ. P. 12(b)(1) and 12(b)(2) challenges will be adjudicated following their
prospective rules.
DATED this 7th day of November, 2011.
BY THE COURT:

____________________________
Clark Waddoups
United States District Judge