Johnson v. Kinney

Opinion

ANTHONY JOHNSON, Case No.: 20-cv-1354-CAB-MSB

Plaintiff, ORDER DENYING EX PARTE v. REQUEST FOR SERVICE OF SUMMONS BY A U.S. MARSHALL DAVID KINNEY et al., WITHOUT PREJUDICE Defendants. [Doc. No. 9] On August 13, 2020, Plaintiff filed an ex parte request for service of summons by a U.S. Marshall. Federal Rule of Civil Procedure 4(c)(3) provides that “[a]t the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal . . .” If a court has authorized a plaintiff to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915 or as a seaman pursuant to 28 U.S.C. § 1916, the court must order service by the USMS. See Fed. R. Civ. P. 4(c)(3). Here, however, Plaintiff is not proceeding IFP because he has paid the full filing fee when he initiated the present action, nor is he proceeding as a seaman. A court has discretion under Rule (4)(3) to order Marshals’ service of a non-IFP complaint “‘in certain limited circumstances as when a hostile defendant threatens injury to the process server.’” Hoffart v. Washington Mut. Bank, Nat. Ass’n, No. CV 12-10465-E, 2013 WL 2445019, at *1 (C.D. Cal. May 13, 2013) (quoting Wright and Miller, Federal Practice and Procedure, § 1090, p. 476 (3rd ed. 2002)). Plaintiff, however, has not made any such showing. Furthermore, Plaintiff filed his First Amended Complaint on July 21, 2020, and the amended summons was issued on July 22, 2020. [Doc. No. 6.] Plaintiff therefore still has a significant amount of time to perfect service on all defendants in this case. Should Plaintiff continue to have trouble serving the defendants when the deadline to serve is near he may renew the motion with a sufficient showing why service by USMS is required. Accordingly, Plaintiff’s request is DENIED without prejudice. It isSO ORDERED. Dated: August 17, 2020 (6 Hon. Cathy Ann Bencivengo United States District Judge