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Brantley v. Nickrenz

United States District Court, D. Minnesota

October 11, 2017

Olan Brantley, Plaintiff,
v.
Christopher Nickrenz et al., Defendants.

          Olan Brantely, pro se, for Plaintiff.

          Chad Blumenfield, Assistant United States Attorney, for Defendants.

          REPORT & RECOMMENDATION

          FRANKLIN L. NOEL, UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER came before the undersigned United States Magistrate Judge on Defendant Christopher Nickrenz and Lieutenant Bus' motion to dismiss (ECF No. 32). This motion has been referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons set for below, the Court recommends that Defendants' motion be DENIED.

         A. Background

         Plaintiff is currently an inmate at the Federal Prison Camp in Duluth, Minnesota. On March 23, 2016, Plaintiff filed his Complaint raising assorted claims under 42 U.S.C. § 1983, alleging violations of his Eighth Amendment rights. See Compl. 4, ECF No. 1. On May 16, 2016, the Court granted Plaintiff's application to proceed in forma pauperis. See Order, ECF No. 7. On November 22, 2016, Defendant Dr. Benjamin Rice answered the Complaint. See Answer, ECF No. 14. On November 29, 2016, the Court granted the remaining Defendants', Christopher Nickrenz and Lieutenant Bus, request that Plaintiff be given a time extension through January 6, 2017, in which to perfect service on them.[1] See Order, ECF No. 16. On December 8, 2016, Plaintiff filed a motion to compel the address of Nickrenz and Bus to effectuate service. See generally Mot. to Comp., ECF No. 18. On January 5, 2017, Plaintiff supplemented his motion to compel with a letter stating that he was attempting to obtain Nickrenz and Bus' address to complete service through a Freedom of Information Act request. See Letter, ECF No. 27. On February 10, 2017, the Court denied Plaintiff's motion to compel for failure to comply with the Federal Rules of Civil Procedure, but provided Plaintiff an additional forty-five days to perfect service on Nickrenz and Bus through Attorney Kara Lund at the Federal Medical Center (“FMC”) in Rochester, Minnesota.[2] See Order, ECF No. 29.

         While the parties attempted to resolve service of process issues, the Court referred Plaintiff's case to the Federal Bar Association, pro se project. See Notice, ECF No. 20. On February 21, 2017, Zorislav Leyderman, an attorney affiliated with the pro se project, requested an opportunity to review the case, confer with Plaintiff, and conduct research. The Court granted Leyderman's request, and gave him forty-five days to decide whether he would enter an appearance on Plaintiff's behalf. However, Leyderman ultimately did not enter an appearance within the forty-five day period.

         On April 18, 2017, Defendants filed the instant motion to dismiss Plaintiff's Complaint pursuant to Rules 12(b)(4), 12(b)(5), and 4(i)(3) of the Federal Rules of Civil Procedure. See Mot. to Dismiss, ECF No. 32. Specifically, Nickrenz and Bus argue that Plaintiff failed to perfect service after receiving two forty-five day extensions. See generally Mem. in Supp., ECF No. 33. On April 25, 2017, Plaintiff represented that he objects to the motion to dismiss because he thought Leyderman was acting as his counsel and would facilitate service of process, see Letter, ECF No. 37, and requested an additional two weeks to perfect service on Nickrenz and Bus through Attorney Lund. See Id. On May 1, 2017, Plaintiff again represented that he was attempting to perfect service on Nickrenz and Bus through Attorney Lund, see Letter, ECF No. 39, and the Court granted Plaintiff an additional fourteen days to perfect service, and an additional twenty-one days to respond to Defendants' motion to dismiss. See Order, ECF No. 40.

         On July 14, 2017, Plaintiff again objected to Defendants' motion to dismiss, and represented that he was still experiencing difficulties serving Nickrenz and Bus because he had not properly completed Form USM-285 when attempting to serve Defendants. See Letter, ECF No. 41. On August 17, 2017, Nickrenz and Bus were served through Attorney Lund at FMC Rochester. See Summons, ECF No. 45. On August 22, 2017, Plaintiff responded to Defendants' motion to dismiss. See Opp'n. Mem., ECF No. 46.

         B. Legal Standard

         A defendant may file a motion to dismiss pursuant to Rules12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure when a plaintiff provides insufficient process or fails to properly serve process. “The distinction between [Rules 12(b)(4) and 12(b)(5)] is often blurred, and it is appropriate to present and analyze service issues under both rules.” Adams v. Allied Signal Gen. Aviation Avionics, 74 F.3d 882, 884 n. 2 (8th Cir. 1996). “To serve [a] United States . . . officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf . . . a party must serve the United States and . . . serve the officer or employee under Rule 4(e), (f), or (g).” Fed.R.Civ.P. 4(i)(3). A plaintiff may also accomplish service by following state law for serving individuals under the law of the state in which the district court is located or the law of the state where service is to be made. See Fed. R. Civ. P. 4(e)(1). Properly effected service of process is a fundamental element of any lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). Defects in service of process are jurisdictional in nature and if a defendant is improperly served, a federal court lacks jurisdiction over the defendant. See Printed Media Serv., Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993). However, “[d]ismissal is not invariably required where service is ineffective: under such circumstances, the district court has discretion to either dismiss the action, or quash service but retain the case.” Marshall v. Warwick, 155 F.3d 1027, 1032 (8th Cir. 1998) (citing Haley v. Simmons, 529 F.2d 78, 78 (8th Cir. 1976)). “[T]he core function of service is to supply notice of the pendency of a legal action, in a manner and at a time that affords the defendant a fair opportunity to answer the complaint and present defenses and objections.” Henderson v. United States, 517 U.S. 654, 672 (1996).

         “If a defendant is not served within 90 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must” appropriately extend the service period. Fed.R.Civ.P. 4(m) (emphasis added). “ Rule 4(m) does not define good cause, and courts have not given conclusive meaning to the phrase.” Kurka v. Iowa Cty., 628 F.3d 953, 957 (8th Cir. 2010). “A showing of good cause requires at least ‘excusable neglect'-good faith and some reasonable basis for noncompliance with the rules.” Id. (quoting Adams, 74 F.3d at 887).

[G]ood cause is likely (but not always) to be found when[:] [1] the plaintiff's failure to complete service in [a] timely fashion is a result of the conduct of a third person, typically the process server, [2] the defendant has evaded service of the process or engaged in misleading conduct, [3] the plaintiff has acted diligently in trying to effect service or there are ...

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