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Flowers v. Schultz

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


July 28, 2008

ALFRED FLOWERS, PLAINTIFF,
v.
PAUL SCHULTZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Simandle, District Judge

MEMORANDUM OPINION

1. This matter comes before the Court on its own initiative, pursuant to Fed. R. Civ. P. 4(m), because it appears that more than 120 days have elapsed since the Complaint in this action was filed on June 6, 2007 and the Complaint has not been properly served on defendants.

2. Pursuant to Plaintiff's motion, on January 2, 2008 the Court entered an Order enlarging the time within which Plaintiff was permitted to serve the Complaint, giving him an additional sixty days from that date. More than sixty days have passed since the entry of that Order and Plaintiff has not properly served the Complaint or the Amended Complaint.

3. Plaintiff attempted to effectuate service by requesting that the U.S. Marshal serve the United States Attorney's office for this District. On March 20, 2007 that office was served and the summonses were returned executed [Docket Item 16]. However, that is not proper service pursuant to Rule 4(i)*fn1.

4. Plaintiff brings this action against United States employees, apparently in their official capacities.*fn2 Pursuant to Fed. R. Civ. P. 4(i)(2), Plaintiff is required to serve the United States as described in Rule 4(i)(1)(A) and also to send a copy of the summons and the complaint by registered or certified mail to each of the employees.

5. Pursuant to Rule 4(i)(4)(A), the Court must allow Plaintiff a reasonable time to cure his failure to properly serve the defendants pursuant to Rule 4(i)(2) because he has already served the United States Attorney. Given the long passage of time since Plaintiff filed the Amended Complaint and given the previous extension of time to permit Plaintiff to make proper service, the Court shall permit Plaintiff only an additional thirty days from the entry of the accompanying Order to properly serve the defendants.

6. As Plaintiff has been informed repeatedly, he must serve not only the U.S. Attorney's office, as he has already done, but must also send a copy of the summons and the amended complaint [Docket Item 5] by registered or certified mail to the Attorney General's office in Washington, D.C. and directly to each of the employees who are defendants in this action. Fed. R. Civ. P. 4(i)(1)(A), Fed. R. Civ. P. 4(i)(1)(B), Fed. R. Civ. P. 4(i)(2). Because Plaintiff appears also to challenge a Bureau of Prisons regulation and the Bureau of Prisons is not a defendant in this case, he also must send a copy of the summons and amended complaint by registered or certified mail to the Federal Bureau of Prisons. Fed. R. Civ. P. 4(i)(1)(C).

7. Further, Plaintiff must then prove service by filing proof of service with the Clerk of Court as to each defendant served, as required by Rule 4(l), Fed. R. Civ. P.

8. If Plaintiff does not properly serve the Amended Complaint and file his proofs of service within thirty days, the Court shall dismiss this action, pursuant to Fed. R. Civ. P. 4(m).

9. In addition, Plaintiff has filed motions to change venue [Docket Item 17] and for leave to file another amended complaint [Docket Item 19] that are currently pending in this case. Because Plaintiff has not properly served the defendants, there has been no Answer filed in this case and no opposition to these motions, and none is yet required. Therefore, the Court shall deny these motions as premature, without prejudice to Plaintiff seeking to refile such motions after he serves the defendants as directed in this Memorandum Opinion. An appropriate Order shall be entered.

JEROME B. SIMANDLE U.S. District Judge


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