United States District Court, D. Minnesota
Howard G. Jackson, Plaintiff,
David Ossell, et al., Defendants.
G. Jackson, pro se Plaintiff.
Stephen J. Christie, Esq., St. Paul City Attorney, counsel
for Defendant David Ossell.
R. THORSON U.S. MAGISTRATE JUDGE
the Court granted Plaintiff's application to proceed
in forma pauperis in this case, the Court required
Plaintiff to submit a properly completed Marshal Service Form
for Melissa Gunderson so that the United States Marshals
Service could attempt service. (Doc. No. 7.) Although
Plaintiff did submit a Marshal Service Form for Gunderson,
she has not yet been served. This matter is now before the
Court on Plaintiff's request regarding service of Melissa
Gunderson (Doc. No. 80).
the pendency of this litigation, the Court was made aware
that Plaintiff improperly attempted service on his own on a
person named Melissa Gunderson (the wrong Melissa Gunderson -
not the Ramsey County employee named in his lawsuit). (Doc.
No. 56.) The United States Marshal Service thereafter
attempted service based on the address provided by Plaintiff
in a Marshal Service form provided on November 15, 2018. The
return filed from the United States Marshal Service after
attempted service indicates that the Melissa Gunderson at the
location provided is “not the Melissa Gunderson
Plaintiff is looking for.” (Doc. No. 81.) Plaintiff now
requests the Court's help with locating and serving the
correct Melissa Gunderson. (Doc. No. 80.) This the Court
effected service of process is a fundamental element to any
lawsuit. Murphy Bros., Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344, 350 (1999). “[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). Defects in
service of process are jurisdictional in nature. “If a
defendant is improperly served, a federal court lacks
jurisdiction over the defendant.” Printed Media
Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th
Cir. 1993). Rule 4(m) provides the following:
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 plaintiff-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 extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). “The plaintiff is responsible for
having the summons and complaint served within the time
allowed by Rule 4(m)[.]” Fed.R.Civ.P. 4(c)(1).
is no comprehensive definition of what constitutes good cause
sufficient to warrant a mandatory extension under Rule
4(m).” Colasante v. Wells Fargo Corp., 81
Fed.Appx. 611, 613 (8th Cir. 2003) (per curiam). “It
has been stated that [a] showing of good cause requires at
least ‘excusable neglect'-good faith and some
reasonable basis for noncompliance with the rules.”
Id. (quotations omitted). “At its core,
however, the standard of good cause, like many others in the
law, is necessarily amorphous.” Id.
“Whether or not it has been satisfied is largely
dependent upon the facts of each individual case.”
Id. Courts have found, however, that “it is
the Plaintiff's responsibility to provide a proper
address to effectuate service of process, and attempts to
effectuate service cannot be considered good cause to grant
an extension of time for that service.” King v.
Dingle, No. 08-5922, 2009 WL 2208164, at *1 (D. Minn.
July 22, 2009) (adopting Report and Recommendation); see
also Petrucelli v. Bohringer and Ratzinger, 46 F.3d
1298, 1307 (3d Cir. 1995) (“[R]eliance upon a third
party or on a process server is an insufficient basis to
constitute good cause for failure to timely serve, and is
also an insufficient basis for granting an extension of time
to effect service.”).
deciding whether to grant a permissive extension under Rule
4(m), the district court may consider other factors,
including the statute of limitations, prejudice to the
defendant, actual notice of the lawsuit, and eventual
service.” Rice v. Univ. of N.D. Sch. of Med. and
Health Scis., No. 2:07-cv-11, 2008 WL 5145482, at *4
(D.N.D. Dec. 8, 2008) (citing Efaw v. Williams, 473
F.3d 1038, 1041 (9th Cir. 2007)). “The district court
must weigh on the record the impact that a dismissal or
extension would have on the parties.” Id.
(citing Zapata v. City of New York, 502 F.3d 192,
197 (2d Cir. 2007)).
point, we are well beyond the 90-day mark for allowing
service on Defendant Gunderson. Even so, the Court does
acknowledge that Plaintiff submitted a new Marshal Service
Form on November 15, 2018, and a Summons was issued on
November 29, 2018. (Doc. No. 65.) The United States Marshal
Service attempted service based on that form, but it was
unsuccessful. Plaintiff relied on the United States Marshal
to provide service, as he should. However, now, after
learning that the address that he provided to the United
States Marshal is incorrect, it is upon him to correct it.
He, as the Plaintiff in this civil case, must provide
accurate information on the Marshal Service Form. Lee v.
Armontrout, 991 F.2d 487, 489 (8th Cir. 1993)
(“[I]t was [the plaintiff]'s responsibility to
provide proper addresses for service on [the
defendants].”); Beck v. Nutakor, No. 04-686
(PJS/SRN), 2008 WL 512706, at *3 (D. Minn. Feb. 25, 2008)
(adopting Report and Recommendation) (“Plaintiff must
not only provide a correct address for a defendant to be
served by the Marshals Service; he must also provide a
correct name.”); see also Kurka v. Iowa
County, No. 08-CV-95-LRR, 2009 WL 906037, at *3 (N.D.
Iowa Mar. 30, 2009) (“[T]he Federal Rules of Civil
Procedure place the burden for effecting service within the
120-day time period upon the plaintiff, as opposed to the
court, the United States Marshal or anyone else.”)
(citing Fed.R.Civ.P. 4(c)(1)).
in light of the above-stated circumstances, and considering
Plaintiff's pro se status, the fact that any
prejudice by Defendants would be minimal, and because this
case is still in its early stages,  the Court finds a short
extension for the time for service warranted. Again,
Plaintiff should not attempt service on his own. He is
granted a short extension of time to try to learn of Melissa
Gunderson's correct address and submit a new Marshal
Service Form so that the United States Marshal can attempt
service based on any new address provided by Plaintiff.
Because it is Plaintiff's responsibility for having the
summons and complaint served, the Court denies
Plaintiff's request for the Court to do his investigation
on the file, submissions, and arguments presented, and for
the reasons stated above, the ...