Summary
This federal district court order rules on the defendant's motion to dismiss for insufficient process and service of process. The court determines that the plaintiff's attempted service was defective because the summons was never properly issued or signed by the clerk. Despite the procedural failure, the court finds good cause for the delay and extends the time for service, denying the motion to dismiss without prejudice. The plaintiff is ordered to file a new summons and complete proper service within fourteen days.
Topics
Practice areas
Questions Presented
- Whether the plaintiff's failure to serve a properly issued summons within 90 days warrants dismissal without prejudice
- Whether the court may extend the time for service when the plaintiff shows good cause
Holdings
- The motion to dismiss for insufficient service is denied without prejudice, and the court grants an extension of time to serve the summons.
- The court may extend the time for service beyond the 90‑day period where the plaintiff demonstrates good cause for the failure.
Key quotations
“Because the summons never issued, there is no question that the process which plaintiff caused to be delivered was insufficient.”
“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.”
Factual background
On December 12, 2019, Defendant, a probation officer, visited the home of a probationer who rented from Plaintiff. Plaintiff, in a wheelchair, confronted Defendant with a gun and ordered him to leave; Defendant fired nine shots, striking Plaintiff in the calf. Plaintiff later filed a §1983 action alleging constitutional violations.
Procedural history
Plaintiff filed a 42 U.S.C. §1983 action on September 16, 2024. Plaintiff failed to obtain a signed summons; the summons was never issued. Defendant moved to dismiss for lack of personal jurisdiction, insufficient process, and insufficient service. The court denied the motion without prejudice and granted an extension of time to serve.
Remand instructions
Plaintiff is directed to file a new proposed summons for issuance by the clerk and to effect proper service on defendant within fourteen days of the entry of this order.