Saunders v. First Magnus Financial

2016 DNH 143

• Court: District Court, D. New Hampshire
• Decided: August 19, 2016
• Docket: 16-cv-222-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Janet Saunders and Peter Saunders

v. Case No. 16-cv-222-JL Opinion No. 2016 DNH 143 First Magnus Financial Corporation, et al.

O R D E R

In May 2016, Janet Saunders and Peter Saunders, proceeding

pro se, filed suit against twenty-one defendants alleging a

variety of claims. Doc. no. 1. The plaintiffs allege that

completing service to all of the defendants has been difficult.

As a result, the plaintiffs now move, in three ex parte

motions, to extend the time limit for service, “[d]irectly

impose the costs of effecting service of process on certain

[d]efendants[,]” and for the court to “[a]uthorize and order

the appointment of the U.S. Marshals Service for purposes of

effecting service of process on certain [d]efendants . . . .”

See doc. nos. 11, 12, 13. The court construes plaintiffs’

“Motion to Include and Attach Just Verified Information” (doc.

no. 12) as an addendum to its Motion to Extend (doc. no. 11).

Federal Rule of Civil Procedure 4(m) states that “if the

plaintiff shows good cause” for failing to timely serve

defendants, “the court must extend the time for service for an

appropriate period.” Good cause may be found when the plaintiff's failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server, the defendant has evaded service of the process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances, or the plaintiff is proceeding pro se or in forma pauperis.

4B Charles Alan Wright, Arthur R. Miller, Federal Practice and

Procedure § 1137 (4th ed. 2016).

Here, the plaintiffs who are proceeding pro se, have

demonstrated their efforts in effecting service to the many

defendants located around the country. As such, the court

grants the plaintiffs’ motion (doc. no. 11) only to the extent

that the time for service be extended to September 26, 2016.

In addition to extending the service deadline, the

plaintiffs move for fees incurred for serving the parties.

Under the Federal Rules, if a domestic defendant fails to sign

and return a waiver without good cause, the court must impose

expenses incurred in making service and reasonable expenses.

Fed. R. Civ. P. 4(d)(2). Nevertheless, “[t]he plaintiff is

responsible for having the summons and complaint served within

the time allowed by Rule 4(m) and must furnish the necessary

copies to the person who makes service.” Fed. R. Civ. P. 4(c).

Thus, “[i]t is not this Court's chore to serve the named

defendants, nor do the defendants have an obligation to waive

service of process. It is solely the plaintiff's obligation to

2 serve the defendants timely and properly.” Cooley v. Cornell

Corr., 220 F.R.D. 171, 172 (D.R.I. 2004). As such, the court

denies the plaintiff’s request for expenses incurred in making

service without prejudice to renewing the motion after the

extended service deadline. Doc. no. 13.

The plaintiffs also request service be made by U.S.

Marshal. Ordering service by U.S. Marshal is generally

discretionary and only mandatory when the plaintiff “is

authorized to proceed in forma pauperis under 28 U.S.C. § 1915

or as a seaman under 28 U.S.C. § 1916.” Neither are applicable

in this case. Therefore, the court denies the plaintiffs’

request to appoint U.S. Marshal to effect service. Doc. no.

13.

The court instructs the clerk’s office to remove the ex

parte designations of the plaintiffs’ motions (doc. nos. 11,

12, 13) and replace them as regular pleadings on the docket.

The designation of these motions as ex parte is inappropriate

since the plaintiffs have indicated they have sent copies of at

least one of the motions to some of the defendants. See doc.

no. 12.

3 Conclusion

The plaintiffs’ motions (doc. nos. 11 and 12) are granted

in part and denied in part as stated in this order. The

plaintiffs’ motion (doc. no. 13) is denied.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge

August 19, 2016

cc: Janet Saunders, Pro Se Peter Saunders, Pro Se Scott C. Owens, Esq. Mary Ellen Manganelli, Esq. James L. Rogal, Esq.