Nadal et al v. United States of America
Filing
8
MEMORANDUM DECISION denying 7 Motion for Extension of Time. IT IS HEREBY ORDERED that Plaintiffs' Motion11 is DENIED. Notably Plaintiffs are not without recourse. Plaintiffs' action was dismissed without prejudice. They are free to re-file their complaint, pay the filing fee, and comply with the Federal Rules of Civil Procedure in the newly initiated proceeding. Signed by Judge David Nuffer on 9/28/2018. (jwt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CHRISTIAN NADAL and ROBBIE
BASCUE,
MEMORANDUM DECISION AND
ORDER DENYING [7] MOTION FOR
EXTENSION OF TIME
Plaintiffs,
v.
Case No. 4:18-cv-00001-DN
UNITED STATES OF AMERICA,
District Judge David Nuffer
Defendant.
Plaintiffs seek an extension of time to serve Defendant in this matter. 1 As part of their
Motion, Plaintiffs attach waivers of service that were purportedly mailed to the U.S. Attorney
General and U.S. Attorney General for the District of Utah. 2 These waivers have not been
executed and to date, proof of service by a method allowed under Rule 4 of the Federal Rules of
Civil Procedure has not been filed. 3
Plaintiffs’ Motion is procedurally improper. This case was dismissed without prejudice
on September 5, 2018 and the case is closed. 4 In a prior response, Plaintiffs assert that they
believed the federal court was the defendant and therefore, service was either not required or
accomplished by filing their complaint. 5 Plaintiffs make other arguments, including allegations
that the President of the United States, U.S. Attorney, and Clerk of the Court were aware of
1
Notice of Service of Complaint Notice of Service of Waiver of Service of Summons (“Motion”), docket no. 7,
filed Sept. 24, 2018.
2
Id.
3
Id.
4
Order Dismissing Case Without Prejudice, docket no. 5, entered Sept. 5, 2018.
5
Response to Court Order Dismissing Case Without Prejudice Motion – Defendants Have Been Served
(“Response”), docket no. 6, filed Sept. 13, 2018.
issues raised in the complaint based upon correspondence sent before this case was initiated and
after. 6 Petitioners assert that the case should be reinstated and the time for service extended due
to “their lack of knowledge of the Court Rules.” 7 None of these arguments is a basis for
reinstating the case. “A document filed pro se is ‘to be liberally construed[.]’” 8 However, it is
not the proper function of the district court to act as an advocate for a pro se litigant. 9 “[The
Tenth Circuit] has repeatedly insisted that ‘pro se litigants follow the same rules of procedure
that govern other litigants.’” 10 This includes Rule 4 governing service.
IT IS HEREBY ORDERED that Plaintiffs’ Motion 11 is DENIED. Notably Plaintiffs are
not without recourse. Plaintiffs’ action was dismissed without prejudice. They are free to re-file
their complaint, pay the filing fee, and comply with the Federal Rules of Civil Procedure in the
newly initiated proceeding.
Dated September 28, 2018.
BY THE COURT:
____________________________
David Nuffer
United States District Judge
6
Response at 1-3, docket no. 6.
7
Motion at 2, docket no. 7.
8
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
9
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
10
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
11
Id.
2
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