Riggins v. Wilmington Savings Funds and Society

Opinion

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DENNIS RIGGINS, Plaintiff, -against- 20-CV-0017 (NSR) WILMINGTON SAVINGS FUNDS AND SOCIETY; UPLAND MORTGAGE ORDER OF SERVICE ACQUISITION CO. LLC; BAYVIEW LOAN SERVICES LLC; M&T BANK; CARRINGTON MORTGAGE LOAN SERVICES, Defendants. NELSON S, ROMAN, United States District Judge: Plaintiff, appearing pro se, brings this action under 28 U.S.C. § 1331, alleging that Defendants violated his rights. By order dated January 3, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP). DISCUSSION Because Plaintiff has been granted permission to proceed IFP, Plaintiff is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir, 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process ... in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP)). Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that the summonses and complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summonses and complaint until the Court reviewed the complaint and ordered that summonses be issued. The Court therefore extends the time to serve until 90 days after the date the summonses are issued. If the complaint is not served within that time, Plaintiff should request WCTROMICALLY BEGIOD |

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an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff's responsibility to request an extension of time for service); see also Murray Pataki, 378 F. App’x 50, 52 (2d Cir. 2010) (“As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals’ failure to effect service automatically constitutes ‘good cause’ for an extension of time within the meaning of Rule A(m).”). To allow Plaintiff to effect service on Defendants Wilmington Savings Funds and Society, Upland Mortgage Acquisition Co. LLC, Bayview Loan Services LLC, M&T Bank, and Carrington Mortgage Loan Services through the U.S. Marshals Service, the Clerk of Court is

instructed to fill out a U.S. Marshals Service Process Receipt and Return form (““USM-285 form”) for each of these Defendants. The Clerk of Court is further instructed to issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon these Defendants. Plaintiff must notify the Court in writing if Plaintiff's address changes, and the Court may dismiss the action if Plaintiff fails to do so. CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. The Clerk of Court is further instructed to issue summonses, complete the USM-285 forms with the addresses for Wilmington Savings Funds and Society, Upland Mortgage Acquisition Co. LLC, Bayview Loan Services LLC, M&T Bank, and Carrington Mortgage Loan Services, and deliver all documents necessary to effect service to the U.S. Marshals Service.

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The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. Dated: J an. }, 2020 ee White Plains, New York LS ™ Ne

United States District Judge

DEFENDANTS AND SERVICE ADDRESSES

I. Wilmington Savings Funds and Society 500 Delaware Avenue Wilmington, DE 19801 2. Upland Mortgage Acquisition Co, LLC c/o Carrington Capital Management 1700 E. Putnam Avenue, Sth Floor Old Greenwich, CT 06870 3, Bayview Loan Services LLC 4425 Ponce de Leon Blvd., 5th Floor Coral Gables, FL 33146 4, M&T Bank P.O. Box 1288 Buffalo, New York 14240 5. Carrington Mortgage Loan Services 80 Lamberton Road, #20 Windsor, CT 06095