Mayes v. International Markets Live

• Court: District Court, W.D. Washington
• Decided: March 9, 2023
• Docket: 2:22-cv-01269
• Status: Unknown

Opinion

1 2 3 4

5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 MARK MAYES, CASE NO. 2:22-cv-01269-TL 12 Plaintiff(s), ORDER ON SERVICE BY v. THE COURT 13 INTERNATIONAL MARKETS LIVE et 14 al, 15 Defendant(s). 16

17 This is a case over allegedly fraudulent and deceptive advice and tools related to forex 18 trading. Dkt. No. 12 at 7–12 (amended complaint). This matter is before the Court on Plaintiff’s 19 motion for service by the Court. Dkt. No. 27. Having reviewed the relevant record, the Court 20 GRANTS Plaintiff’s motion, for the reasons below. 21 I. BACKGROUND 22 Plaintiff Mark Mayes brings suit against Defendants International Markets Live (“IML”) 23 and two individuals associated with IML for an alleged pyramid scheme to provide poor, 24 fraudulent, or deceptive advice and other tools related to forex trading, among other allegations 1 of misconduct. Dkt. No. 12 at 7–12 (amended complaint). Plaintiff seeks monetary damages and 2 injunctive relief. Id. at 12. Plaintiff proceeds pro se, or without legal representation, and in forma 3 pauperis. Dkt. No. 6. 4 Plaintiff attempted service on Defendants through a process server but was unsuccessful,

5 as the address used to serve all three Defendants was a UPS store. Dkt. No. 20 (“proof of 6 service” form showing process server’s failure to serve). No Defendant has appeared in the 7 action. Plaintiff has attempted to email IML multiple times about this litigation and has 8 apparently received no response other than automated messages. Dkt. No. 25 at 1, 3, 5, 9, 11, 13. 9 Plaintiff then moved for the entry of default against Defendants, which the Court denied for 10 failure to serve process consistent with Federal Rule of Civil Procedure (“FRCP”) 4. Dkt. Nos. 11 23, 26. Plaintiff now moves for service by the Court. Dkt. No. 27. 12 II. LEGAL STANDARD 13 FRCP 4(c)(3) provides that: 14 At the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person 15 specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 16 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916. 17 28 U.S.C. § 1915, which authorizes litigants to proceed in forma pauperis in federal 18 court, also provides that, “The officers of the court shall issue and serve all process, and perform 19 all duties in such cases.” 28 U.S.C.§ 1915(d). The Ninth Circuit has held that, read together, 20 these provisions require an in forma pauperis plaintiff to request service of process by court 21 officers in order for court officers to be responsible for effecting such service. Boudette v. 22 Barnette, 923 F.2d 754, 757 (9th Cir. 1991) (holding that in forma pauperis plaintiff failed to 23 timely serve complaint where he had not requested court-assisted service); see also Eriksen v. 24 1 Wash. State Patrol, 308 F. App’x 199, 200 (9th Cir. 2009) (affirming dismissal for failure to 2 timely serve where plaintiffs failed to request service by marshals). 3 III. DISCUSSION 4 Plaintiff proceeds in forma pauperis and requests service by a U.S. Marshal or other

5 officer and is therefore entitled to the Court’s assistance under FRCP 4(c)(3) and 28 U.S.C. 6 § 1915. While there appears to be some doubt as to whether the address for Defendants is 7 accurate, the Court has no other information to rely on and will attempt service at: 108 Village 8 Square #146, Somers, NY 10589. See, e.g., Dkt. No. 18 at 1. However, the Court will first give 9 Defendants the opportunity to waive service. 10 Relatedly, FRCP 4(m) requires that: 11 If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the 12 plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specific time. But 13 if the plaintiff shows good cause for the failure, the court must 14 extend the time for service for an appropriate period. 15 Plaintiff filed his complaint on September 28, 2022 (Dkt. No. 7) and filed an amended complaint 16 on October 24, 2022 (Dkt. No. 12). Even assuming that the 90-day clock reset with the amended 17 complaint, Plaintiff’s time to serve ran out on January 22, 2023. Plaintiff has not sought an 18 extension; nor did he seek the Court’s assistance on effecting service of process until February 6, 19 after the deadline. Nonetheless, the Court finds that, given Plaintiff’s prior attempts to serve 20 Defendants and his motion before this Court, which was filed only about two weeks after the 21 deadline, there is good cause to extend Plaintiff’s deadline to serve Defendants. 22 IV. CONCLUSION 23 Accordingly, it is hereby ORDERED: 24 (1) Plaintiff’s motion for service by the court (Dkt. No. 27) is GRANTED. 1 (2) Plaintiff’s deadline to serve Defendants with process is EXTENDED by an 2 additional 90 days, to April 22, 2023. 3 (3) The Clerk SHALL send the following to each named Defendant by certified mail to 4 108 Village Square #146, Somers, NY 10589:

5 (a) a copy of the amended complaint (Dkt. No. 12); 6 (b) a copy of this Order; 7 (c) a copy of the appropriate Summons (Dkt. No. 19); 8 (d) two copies of the Notice of Lawsuit and Request for Waiver of Service of 9 Summons; 10 (e) a Waiver of Service of Summons; and 11 (f) a return envelope, postage prepaid, addressed to the Clerk’s Office. 12 (4) Defendants SHALL have thirty (30) days from the date of this Order within which 13 they may return the Waiver of Service of Summons. 14 (a) Any Defendant who timely returns the signed waiver shall have sixty (60)

15 days after the date designated on the notice of lawsuit to file and serve an 16 answer to the complaint or a motion permitted under FRCP 12. 17 (b) If any Defendant fails to timely return the signed waiver, the Court plans 18 to seek the assistance of the U.S. Marshals Service in serving Defendants 19 with process. Defendants are cautioned that they may be required to pay 20 the full costs of such service, pursuant to FRCP 4(d)(2). 21 Dated this 9th day of March 2023. 22 A 23 Tana Lin United States District Judge 24