Humphrey, Frank et al v. Love's Travel Stops & Country Stores, Inc. et al

Filing 2

Initial Order for Paid Pro Se: Plaintiff directed to serve complaint. Proof of service due 6/10/2013. Signed by Magistrate Judge Stephen L. Crocker on 4/18/2013. (Attachments: # 1 Procedure for serving a complaint, # 2 Wis. Stat. 801.11) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
___________________________________________________________________________________
FRANK A. HUMPHREY,
ORDER
Plaintiff,
13-cv-235-wmc
DEAN HEALTH PLAN, INC.,
Subrogated Plaintiff,
v.
LOVE’S TRAVEL STOPS &
COUNTRY STORES, INC. and
HARDEE’S FOOD SYSTEMS, INC.,
Defendants.
____________________________________________________________________________________________

This is a civil action for monetary relief in which plaintiff Frank Humphrey, who is
proceeding pro se, alleges that he received physical injuries from a fall caused by actions and
omissions of the defendants. Plaintiff has paid the $350 fee for filing this case.
The next step is for plaintiff to serve his complaint on the defendants. Under Fed. R.
Civ. P. 4(m), a plaintiff has 120 days after filing a complaint in which to serve the defendants.
However, that is an outside limit with few exceptions. This court requires that a plaintiff act
diligently in moving his case to resolution. If plaintiff acts promptly, he should be able to serve
his complaint on the defendants well before the deadline for doing so established in Rule 4.
To help plaintiff understand the procedure for serving a complaint, I am enclosing with
this order a copy of a document titled “Procedure for Serving a Complaint on a Corporation in
a Federal Lawsuit.” In addition, I am enclosing a summons issued by the clerk’s office for each
defendant in accordance with the procedures set out in Option 2 of the memorandum. To the
extent that plaintiff wishes to attempt service on the defendants using Option 1 of the

procedure, he may obtain the AO 398 notice of lawsuit and AO 399 waiver of summons forms
from this court’s website at www.wiwd.uscourts.gov.

ORDER
IT IS ORDERED that plaintiff serve his complaint on the defendants promptly and file
proof of service of his complaint as soon as he has served the defendants. (“Proof of service” is
explained in the attachments.) By June 10, 2013, plaintiff is to file proof of service of his
complaint on the defendants or tell the court why he cannot do so. If he does not file the proof
of service or explain why he could not serve the defendants, I will order him to explain why his
case should not be dismissed for lack of prosecution.

Entered this 17th day of April, 2013.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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PROCEDURE FOR SERVING A COMPLAINT ON
A CORPORATION, PARTNERSHIP OR UNINCORPORATED ASSOCIATION
IN A FEDERAL LAWSUIT
A plaintiff suing a corporation, partnership or unincorporated association in federal
court may satisfy the service requirements of Fed. R. Civ. P. 4 by following one of two
procedures.
Option One
Plaintiff may notify a defendant corporation, partnership, or association’s “officer,
managing or general agent or other agent authorized by appointment or law to receive
service of process” in writing of the filing of his lawsuit and request that the defendant waive
service of a summons. Fed. R. Civ. P. 4(d)(1). If plaintiff chooses this method of service,
plaintiff must
!

complete an original and one copy of a form titled “Notice of a Lawsuit and
Request to Waive Service of a Summons” AO 398;

!

address a large envelope to the officer, managing or general agent or other
agent and place the following documents inside:
a)
b)
c)
d)

an original and one copy of the completed notice form;
a blank form titled “Waiver of Service of Summons” AO 399;
a copy of the complaint filed in federal court; and
a self-addressed, stamped envelope for the defendant’s use in
returning the waiver form;

!

mail the envelope to the officer or agent by first-class mail or other reliable
means;

!

allow the defendant "a reasonable time to return the waiver, which shall be at
least 30 days from the date on which the request is sent . . . ." (Fed. R. Civ.
P. 4(d)(1)(F)).

!

mail a copy of the signed waiver form to the court for filing as proof of service.

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Option Two
Note well: This procedure need not be followed unless a defendant refuses to
complete and return a waiver form as described above.
Plaintiff may arrange to serve the defendant corporation, partnership or association
with a summons and complaint. Fed. R. Civ. P. 4(h). If plaintiff chooses this method of
service, plaintiff must
!

obtain a signed and court-sealed summons from the clerk’s office,

!

arrange for someone over the age of 18 years of age who is not a party to the
lawsuit to
a) deliver the signed and sealed summons and a copy of the complaint
to an officer, a managing or general agent or any other agent
authorized by appointment or by law to receive service of process
and—if the agent is one authorized by statute and the statute so
requires—by also mailing a copy of each to the defendant, Fed. R. Civ.
P. 4(h)(1)(B); or
b) serve defendant in accordance with state law, Fed. R. Civ. P.
4(h)(1)(A); Wis. Stat. § 801.11;

!

file with the court an affidavit of the person who effected service of the
summons and complaint upon defendant stating the time and date the
delivery was made and with whom the summons and complaint was left, or
showing a receipt signed by the defendant’s officer, managing or general agent
or any other agent authorized by appointment or by law to receive service of
process, or other evidence of delivery. Fed. R. Civ. P. 4(l).

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