Van Ornum v. US Department of Health and Human Service et al

Filing 7

MEMORANDUM DECISION denying 2 Motion for Service of Process without Prejudice. See Order for details. Signed by Magistrate Judge Dustin B. Pead on 8/12/13. (jmr)

Van Ornum v. US Department of Health and Human Service et al

Doc. 7

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

SANDRA C.K. VAN ORNUM,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
vs.

Case No. 2:13cv671

U.S. DEPARTMENT OF HEALTH and
HUMAN SERVICES, HAWAII
PACIFIC HEALTH, KUAKINI
HEALTH, and WILLIAM GOODHUE,
JR.,

District Judge Clark Waddoups
Magistrate Judge Dustin B. Pead

Defendants.

This matter was referred to Magistrate Judge Dustin Pead by District Judge Clark
Waddoups pursuant to 28 U.S.C. § 636(b)(1)(B) (Dkt. No. 4). Currently before the court, is
Plaintiff Sandra C.K. Van Ornum’s (“Plaintiff”) “Motion For Service Of Process” filed pursuant
to Federal Rule of Civil Procedure 4(c)(3) (Dkt. No. 2). In her motion, Plaintiff asks the Court to
direct the United States Marshal’s Service (“USMS”) to serve all named Defendants on her
behalf.
Pursuant to Rule 4(c)(3),
At the plaintiff’s request, the court may order that service be made by
a United States marshal or deputy marshal or by a person 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.

Dockets.Justia.com

Here, having paid the filing fee, Plaintiff is not proceeding in forma pauperis pursuant to
28 U.S.C. § 1915, and has not alleged that she is a seaman under 28 U.S.C. § 1916. As a result,
the Court’s decision as to whether to order the USMS to serve the summons and complaint is
discretionary. See, York v. Fed. Bureau of Prisons, 2008 U.S. Dist. LEXIS 45631, *4 (D. Colo.
June 11, 2008); Bax v. Executive Office For U.S. Attorneys, 2003 U.S. Dist. LEXIS 9718
(D.D.C. June 12, 2003).
In an attempt to avoid placing an undue burden on the USMS by requiring them to serve
summons and complaints in private civil actions, courts have held that Plaintiff should “first
‘seek service by private means whenever feasible rather than impose the burden on the
Marshal’s Service.’” York at *4 (citing, Advisory Committee Notes for Fed. R. Civ. P. 4); see
also Bax at **2 (“courts have held that a plaintiff requesting service by the United States
Marshal first must attempt service by some other means authorized by Rule 4.”); Wright v.
Young, 2011 U.S. Dist. LEXIS 110053 (N.D. Fla. September 26, 2011); Jones v. Goodman,
1992 U.S. Dist LEXIS 11152 (E.D. Pa. July 21, 1992) (“before this court invokes the resources
of the government to effect service of process in this matter, plaintiff must first exert some effort
to complete service. . . .).”
Here, Plaintiff has not identified any specific reason for requesting service by the USMS
and does not demonstrate any prior efforts, on her part, to effect service. Accordingly, the Court
hereby DENIES Plaintiff’s Motion For Service without prejudice (Dkt. No. 2). Plaintiff may
re-file her motion upon a showing that her own attempts to serve the Defendants, through a
means provided by under the Federal Rules, were unsuccessful.
2

IT IS SO ORDERED.
DATED this 12th day of August, 2013.

___________________________
Dustin B. Pead
United States Magistrate Judge

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