United States District Court, W.D. Pennsylvania
November 28, 2005.
PHILIP A. GARLAND, Plaintiff,
US AIRWAYS, INC., et al., Defendants.
The opinion of the court was delivered by: DONETTA AMBROSE, District Judge
OPINION and ORDER OF COURT
Plaintiff commenced this action on February 7, 2005 by filing
an Application to Proceed in Forma Pauperis and attaching
thereto a copy of his Complaint. (Docket No. 1). I granted
Plaintiff's Application to Proceed in Forma Pauperis on
February 10, 2005, and Plaintiff's Complaint was deemed filed on
that date. (Docket No. 2). Plaintiff never requested issuance of
a summons and none was issued. On June 29, 2005, I granted
Plaintiff's Motion to Amend his Complaint. (Docket No. 7).
Plaintiff's First Amended Complaint named four new defendants.
Again, there is no indication in the record that Plaintiff
requested the issuance of a summons and none was issued.
Plaintiff has not filed a waiver of service of summons or
adequate proof of service with respect to either his original or
first amended Complaint.
Over 120 days have passed since Plaintiff filed both his
original and first amended Complaints. On October 25, 2005, my
deputy clerk wrote to Plaintiff requesting that he file, by November 14, 2005, either proof of
service or a written explanation of why service has not been
made. The letter notified Plaintiff that his failure to do so
could result in dismissal of the action for failure to prosecute.
Rather than respond directly to the Court's October 25 notice,
Plaintiff filed a Motion to amend his Complaint a second time to
add a new Defendant, Sarah Bean, and new allegations of
retaliatory conduct in which Plaintiff contends Ms. Bean recently
engaged. (Docket No. 11). I will address Plaintiff's Motion to
Amend and the outstanding service of process issues in turn.
A. MOTION TO AMEND COMPLAINT
Plaintiff's Motion to Amend his Complaint a second time is
granted. In filing his first amended complaint, Plaintiff
exercised his right to amend his complaint once as provided in
Federal Rule of Civil Procedure 15(a). Thus, Plaintiff may amend
his complaint further only with leave of Court or upon consent of
the opposing parties. See Fed.R.Civ.P. 15(a). Leave to amend
under Rule 15(a) must be "freely given when justice so requires."
Id. Considering Plaintiff's pro se status as well as the fact
that neither of Plaintiff's prior two complaints have yet been
served on any of the existing defendants (and, thus, the case is
still in its initial stages), I will grant Plaintiff's motion to amend. In addition, amendment is
appropriate under Federal Rule of Civil Procedure 15(d), which
permits a party, with leave of court, to supplement his complaint
to set forth transactions, occurrences, or events which happened
subsequent to the date of the initial pleading.
B. SERVICE OF PROCESS ISSUES
Neither the fact that I am granting Plaintiff's Motion to Amend
nor the filing of Plaintiff's Second Amended Complaint remedies
the service issues that were the subject of the Court's October
25, 2005 notice to Plaintiff.*fn2 To the extent Plaintiff
attempted to respond to the October 25 notice within his Motion
to Amend, that response is inadequate and fails to demonstrate
With respect to Plaintiff's original Complaint, the record at
most shows that Plaintiff mailed copies of the Complaint and a
request for waiver of service of summons to three named
defendants, to purported counsel for Defendant Airline Pilots
Association, and to the U.S. Attorney's office in Pittsburgh,
Pennsylvania and the Office of the Attorney General in
Washington, D.C. (presumably with respect to Defendant US Airways
Pilot's System Board of Adjustment which Plaintiff claims is a
federal labor arbitration panel). Even if such mailings were
proper, which largely they were not,*fn3 there is no
indication that any of the defendants returned the waiver of service of summons. When a party refuses to waive
service of summons, the plaintiff is required to proceed with
formal service of process as prescribed in Rule 4. This Plaintiff
did not do.
Plaintiff likewise has failed to demonstrate that he properly
served his first Amended Complaint on any of the defendants named
therein. Plaintiff suggests in his Motion to Amend that he
properly effected service by mailing copies of the Amended
Complaint (without a summons or request for waiver of service) to
counsel. No counsel, however, has yet entered an appearance in
this case. Thus, Plaintiff was required to serve each defendant
directly as set forth in Rule 4. See Fed.R.Civ.P. 5.
As stated previously, where, as here, a plaintiff fails to
effect service within 120 days of filling the complaint, I may
dismiss the case without prejudice or direct that service be
effected within a specified time. Fed.R.Civ.P. 4(m). Although
I may do so, I will not dismiss Plaintiff's action against the
individuals named in the original and first amended complaints at
this time. In so deciding, I recognize that Plaintiff is
proceeding pro se and that he appears to have made some
attempts, albeit improper ones, to effect service. Also
significant is Plaintiff's in forma pauperis status. As set
forth in Federal Rule of Civil Procedure 4(c)(2):
Service may be effected by any person who is not a
party and who is at least 18 years of age. At the
request of the plaintiff, however, the court may
direct that service be effected by a United States
marshal, or other person or officer specially
appointed by the court for that purpose. Such an
appointment must be made when the plaintiff is
authorized to proceed in forma pauperis pursuant to
28 U.S.C. § 1915 Fed.R.Civ.P. 4(c)(2) (emphasis added).
28 U.S.C. § 1915, relating to in forma pauperis proceedings,
likewise provides that "[t]he officers of the court
shall issue and serve all process, and perform all
duties in such cases." 28 U.S.C. § 1915(d).
Courts within this Circuit have held that a "plaintiff
proceeding in forma pauperis is entitled to rely on the United
States Marshal Service to serve process" and that "[a]s long as
the plaintiff provides adequate information to identify the party
to be served, a complaint should not be dismissed under Rule 4(m)
for the Marshal Service's failure to effectuate proper service."
Wilson v. Vaughn, No. Civ. A. 93-6020, 1996 WL 528870, at *1
(E.D. Pa. Mar. 14, 1996). Plaintiffs, however, "`may not remain
silent and do nothing to effectuate such service. At a minimum, a
plaintiff should request service upon the appropriate defendant
and attempt to remedy any apparent service defects of which a
plaintiff has knowledge.'" White v. SKF Aerospace, Inc.,
768 F.Supp. 498, 501 (E.D. Pa. 1991) (quoting Rochon v. Dawson,
828 F.2d 1107
, 1110 (5th Cir. 1987)); see also Young v.
Quinlan, 960 F.2d 351
, 359 (3d Cir. 1992).
Here, there is no indication in the record that Plaintiff ever
requested service by the Marshal, and the record as it currently
stands does not contain sufficient identifying information
regarding the defendants for the Marshal to effect such service.
There also, however, is no indication that Plaintiff was aware of
his entitlement to this method of service. Consequently, I find
that it would be unfair to Plaintiff to dismiss his action
without affording him another opportunity to effect proper service.
Accordingly, I will allow Plaintiff 120 days to serve his
Second Amended Complaint on each Defendant named therein in the
manner prescribed in Rule 4.*fn4 If Plaintiff chooses to
have the U.S. Marshal effect service pursuant to Rule 4(c)(2), he
must complete a summons and a Marshal's Form (Form 285) providing
the names and addresses of each defendant and return the
completed forms to the Clerk's Office within 30 days. A blank
summons and Form 285 are attached hereto.
If Plaintiff completes and returns the appropriate paperwork,
the Clerk of Court will be directed to issue summonses and
instruct the U.S. Marshal to serve the Second Amended Complaint
on each named defendant in accordance with Rule 4. if service of
the Second Amended Complaint is not effected within 120 days of
filing through any fault or inaction of Plaintiff, Plaintiff's
action will be dismissed. ORDER OF COURT
AND NOW, this 28th day of November, 2005, after careful
consideration of plaintiff's submissions and for the reasons set
forth in the Opinion accompanying this Order, it is ORDERED that
plaintiff's Motion to Amend Civil Complaint Pursuant to FRCP
15(a)(c)(d) (Docket No. 11) is GRANTED and that the proposed
"Second Amended Complaint For Damages Bivens and for Declaratory
Judgment" attached to plaintiff's Motion to Amend is deemed filed
with the Court on this date.
It is further ORDERED that Plaintiff shall have 120 days from
the date of this Order to serve his Second Amended Complaint on
each Defendant named therein in the manner prescribed in Federal
Rule of Civil Procedure 4. If Plaintiff chooses to have the U.S.
Marshal effect service of the Second Amended Complaint pursuant
to Federal Rule of Civil Procedure 4(c)(2) and
28 U.S.C. § 1915(d), plaintiff must complete a summons and a Marshal's Form
(Form 285) providing the names and addresses of each defendant and return the completed forms to the Clerk's
Office within 30 days of the date of this Order.
If plaintiff completes and returns the appropriate paperwork,
the Clerk of Court is directed to issue summons and direct the
U.S. Marshal to serve the Second Amended Complaint on the
defendants named therein in accordance with Federal Rule of Civil
Procedure 4, with all costs to be borne by the government, in
forma pauperis having been previously granted. If service of the
Second Amended Complaint is not effected within 120 days of the
date of this Order through any fault or inaction of Plaintiff,
Plaintiff's action will be dismissed.
© 1992-2005 VersusLaw Inc.