Burrell v. Llieberman

• Court: District Court, District of Columbia
• Decided: January 30, 2013
• Docket: Civil Action No. 2012-0471
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) THOMAS BURRELL, ) ) Plaintiff, ) ) v. ) Civil Action No. 12-0471 (PLF) ) MICHAEL W. LIEBERMAN, et al., ) ) Defendants. ) __________________________________________)

MEMORANDUM OPINION AND ORDER

The plaintiff, Thomas Burrell, commenced an action in the United States District

Court for the Western District of Tennessee by filing a “Motion for Ex Parte Temporary

Restraining Order.” Dkt. No. 1. The presiding judge transferred the case to this Court pursuant

to 28 U.S.C. § 1406(a) based on improper venue. See Dkt. No. 5-2.

A review of the docket suggests that the defendants have never been properly

served. Rule 4(c)(1) of the Federal Rules of Civil Procedure requires plaintiffs to ensure that a

summons is served on each defendant along with the complaint. Rule 4(e) identifies the means

through which a summons and complaint may be served on individuals within a judicial district

of the United States. Rule 4(l) requires plaintiffs to provide proof of service in the form of the

server’s affidavit (unless process has been served by a United States marshal).

Included with Mr. Burrell’s motion is a “Certificate of Service” stating that Mr.

Burrell served his motion on the five defendants by “placing same for service through the U.S.

District Court” and by mailing copies of the motion to the defendants through the U.S. Postal Service. Dkt. No. 1 at 12. Mr. Burrell also filed with the Court an unsigned document labeled

both “Notice of Hearing” and “Affidavit,” which describes having mailed his motion to the

defendants. See Dkt. No. 3. Neither of these documents constitutes proof that service has been

properly served under Rule 4. There is no indication that a summons was ever issued by the

court or delivered to any defendant. Moreover, process generally may not be served by a party to

the case, Fed. R. Civ. P. 4(c)(2), or by simply mailing the summons and complaint to the

defendants. See Fed. R. Civ. P. 4(e). While a United States marshal or other person specially

appointed by the court may serve process at a plaintiff’s request upon court order, Fed. R. Civ. P.

4(c)(3), there is no record in the docket of a summons or complaint having been served in this

manner.

Before dismissing a complaint sua sponte for lack of proper service, a court must

provide notice to the plaintiff. Fed. R. Civ. P. 4(m) (“If a defendant is not served within 120

days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff

— must dismiss the action without prejudice against that defendant or order that service be made

within a specified time.”) (emphasis added); see Brown v. Dist. of Columbia, 514 F.3d 1279,

1286 (D.C. Cir. 2008). Accordingly, it is hereby

ORDERED that on or before March 15, 2013, the plaintiff shall either file an

affidavit proving service or show cause why this case should not be dismissed for failure to

serve.

SO ORDERED.

/s/________________________ PAUL L. FRIEDMAN DATE: January 30, 2013 United States District Judge