Johnson v. Kinney
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
Plaintiff filed an ex parte request for the U.S. Marshal to serve the summons on defendants. The court denied the request without prejudice because the plaintiff was not proceeding in forma pauperis and failed to show the limited circumstances required for discretionary marshals' service.
| What the court decided | The model |
|---|---|
Denial of ex parte request for service of summons by a U.S. Marshal“Accordingly, Plaintiff’s request is DENIED without prejudice.” | agree with court The court correctly applied Federal Rule of Civil Procedure 4(c)(3). Because the plaintiff paid the full filing fee, he is not proceeding in forma pauperis (IFP) or as a seaman, meaning the court is not mandated to order service by the U.S. Marshals Service (USMS). Instead, the court has discretion to order USMS service only in 'limited circumstances,' such as when a hostile defendant threatens injury to the process server. The order notes the plaintiff made no such showing. Additionally, the court noted that the summons was issued recently, leaving ample time for the plaintiff to attempt service by other means. Denying the motion without prejudice allows the plaintiff to renew it if circumstances change or the deadline approaches. |
The order itself: sound — The order is procedurally sound. It correctly identifies the distinction between mandatory USMS service for IFP/seaman plaintiffs and discretionary service for others. It applies the correct standard from district court precedent (Hoffart) regarding the 'limited circumstances' required for discretionary service. It also provides practical guidance by noting the recent issuance of the summons and allowing renewal of the motion if necessary.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY JOHNSON, Case No.: 20-cv-1354-CAB-MSB 12 Plaintiff, ORDER DENYING EX PARTE 13 v. REQUEST FOR SERVICE OF SUMMONS BY A U.S. MARSHALL 14 DAVID KINNEY et al., WITHOUT PREJUDICE 15 Defendants. 16 [Doc. No. 9] 17 18 On August 13, 2020, Plaintiff filed an ex parte request for service of summons by a 19 U.S. Marshall. Federal Rule of Civil Procedure 4(c)(3) provides that “[a]t the plaintiff’s 20 request, the court may order that service be made by a United States marshal or deputy 21 marshal . . .” If a court has authorized a plaintiff to proceed in forma pauperis (“IFP”) 22 under 28 U.S.C. § 1915 or as a seaman pursuant to 28 U.S.C. § 1916, the court must order 23 service by the USMS. See Fed. R. Civ. P. 4(c)(3). Here, however, Plaintiff is not 24 proceeding IFP because he has paid the full filing fee when he initiated the present action, 25 nor is he proceeding as a seaman. A court has discretion under Rule (4)(3) to order 26 Marshals’ service of a non-IFP complaint “‘in certain limited circumstances as when a 27 hostile defendant threatens injury to the process server.’” Hoffart v. Washington Mut. 28 Bank, Nat. Ass’n, No. CV 12-10465-E, 2013 WL 2445019, at *1 (C.D. Cal. May 13, 2013) 1 || (quoting Wright and Miller, Federal Practice and Procedure, § 1090, p. 476 (3rd ed. 2002)). 2 || Plaintiff, however, has not made any such showing. Furthermore, Plaintiff filed his First 3 || Amended Complaint on July 21, 2020, and the amended summons was issued on July 22, 4 ||2020. [Doc. No. 6.] Plaintiff therefore still has a significant amount of time to perfect 5 || service on all defendants in this case. Should Plaintiff continue to have trouble serving the 6 defendants when the deadline to serve is near he may renew the motion with a sufficient 7 showing why service by USMS is required. Accordingly, Plaintiff’s request is DENIED 8 || without prejudice. 9 It isSO ORDERED. 10 || Dated: August 17, 2020 (6 11 Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28