Fluker, Jr. v. Carr

• Court: District Court, E.D. Michigan
• Decided: February 10, 2025
• Docket: 2:22-cv-11992
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ANTONIO LYNN FLUKER, JR., Case No. 22-11992 Plaintiff, Honorable Sean F. Cox Magistrate Judge Elizabeth A. Stafford v. GARY CARR, Defendant. ORDER FOR THE U.S. MARSHALS SERVICE TO USE REASONABLE EFFORTS TO SERVE DEFENDANT GARY CARR

Plaintiff Antonio Lynn Fluker, Jr., proceeding pro se and in forma pauperis, sues Gary Carr, alleging that he violated the Right to Financial Privacy Act (RFPA). ECF No.5. The Honorable Sean F. Cox referred the case to this Court for all pretrial matters under 28 U.S.C. § 636(b)(1). ECF

No. 31. 28 U.S.C. § 1915(d) requires that officers of the court “issue and serve process” when a plaintiff is proceeding in forma pauperis, and Federal Rule of Civil Procedure 4(c)(3) provides that the court appoint the

Marshals Service to serve process in these cases. Together, Rule 4(c)(3) and 28 U.S.C. § 1915(d) “stand for the proposition that when a plaintiff is proceeding in forma pauperis the court is obligated to issue plaintiff's process to a United States Marshal who must in turn effectuate service upon the defendants, thereby relieving a plaintiff of the burden to serve

process….” Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). See also Donaldson v. United States, 35 F. App'x 184, 185 (6th Cir. 2002) (holding that the district court has a statutory responsibility to issue an in forma pauperis plaintiff’s service to the Marshal).

The Court granted Fluker’s application to proceed in forma pauperis and ordered the U.S. Marshals Service to serve Defendant Carr by August 22, 2024. ECF No. 7; ECF No. 33, PageID.120. The Marshals Service tried to serve Defendant Carr by mailing the summons, copies of the

complaint, and a waiver of service form to his employer—Fifth Third Bank. See ECF No. 35; ECF No.36. It was returned as unexecuted. Id. The Court then ordered the Marshals Service to use reasonable efforts to locate and personally serve Carr by conducting an internet search

and consulting with the defendant’s former employer. ECF No. 38, PageID.142. In response, the Marshals Service informed the Court that it consulted with Carr’s former employer and was told that it had no identifiers or home addresses for Carr because he is an unknown employee. But the

Marshals Service did not indicate that it conducted an internet search for Carr. The Court conducted its own search and found a LinkedIn profile for “Garry Carr, a Consumer Fraud Manager at Fifth Third Bank in Dayton, Ohio.” See Gary Carr, LinkedIn, https://www.linkedin.com/in/gary-carr- a69749103/ (last visited Feb. 10, 2025).

The Marshals Service must now use reasonable efforts to locate and personally serve Carr through an internet search. See Johnson v. Herren, No. 2:13-cv-583, 2013 WL6410447, at *2-4 (S.D. Ohio Dec. 9, 2013) (ordering the Marshals Service to take reasonable steps to locate

defendant’s address through an internet search). And it must inform the Court of the results of these efforts by March 12, 2025. See Neal v. City of Detroit Police Dep’t, No. 17-13170, 2018 WL 8608298, at *1 (E.D. Mich. Jan. 19, 2018).

s/Elizabeth A. Stafford ELIZABETH A. STAFFORD United States Magistrate Judge

Dated: February 10, 2025 NOTICE TO PARTIES ABOUT OBJECTIONS

Within 14 days of being served with this order, any party may file objections with the assigned district judge. Fed. R. Civ. P. 72(a). The district judge may sustain an objection only if the order is clearly erroneous or contrary to law. 28 U.S.C. § 636. “When an objection is filed to a magistrate judge’s ruling on a non-dispositive motion, the ruling remains in full force and effect unless and until it is stayed by the magistrate judge or a district judge.” E.D. Mich. LR 72.2.

CERTIFICATE OF SERVICE

The undersigned certifies that this document was served on counsel of record and any unrepresented parties via the Court’s ECF System to their email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on February 10, 2025.

s/Davon Allen DAVON ALLEN Case Manager