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Reeder v. Knapik

November 7, 2007

VIRGINIA REEDER, PLAINTIFF,
v.
JOHN KNAPIK DBA K/MONT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING EX PARTE APPLICATION FOR FREE PROCESS OF SUMMONS AND FIRST AMENDED COMPLAINT [doc. #59] and DISMISSING CONSTRUCTION WITHOUT PREJUDICE UNSERVED DEFENDANTS

On October 15, 2007, plaintiff, appearing pro se, filed an ex parte application for service of process by publication on the unserved defendants and at the expense of the Court. [doc. #

1. Entitlement to Service of Process at Court Expense

The Court first notes that plaintiff, having paid the $350.00 filing fee, is not proceeding in forma pauperis and has not sought such status. (See docket no. 1; receipt no. 135392). Under 28 U.S.C. § 1915(a)(1), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefore, by a person who submits an affidavit that includes a statement of all assets such [person] possesses, that the person is unable to pay such fees or give security therefor. . . .

28 U.S.C. § 1915(a)(1) (emphasis added).

Federal Rule of Civil Procedure 4(c)(2) also provides:

[T]he court may direct that service be effected by a United States marshal, deputy United States marshal, or other person or officer specially appointed the court for that purpose. Such an appointment must be made when the plaintiff is authorized to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 . . . .". R. CIV. P. 4(c)(2) (emphasis added).

Here, because plaintiff neither sought nor obtained in forma pauperis status, plaintiff is responsible for service of the summons and complaint and for the costs of service.*fn1 Accordingly, plaintiff is not entitled to service of process at Court expense.

2. Service by Publication

Eventhough plaintiff is not entitled to service of process at Court expense, the Court will review the law concerning service by publication.*fn2

The Federal Rules of Civil Procedure do not expressly provide for service of process by publication. California, however, does provide for service by publication in its Code of Civil Procedure § 415.50.*fn3 Section 415.50 provides in relevant part:

(a) A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either:

(1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action. . . .

(b) The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served. If the party to be served resides or is located out of this state, the court may also order the summons to be published in a named newspaper outside this state that is most likely to give actual notice to that party. The order shall direct that a copy of the summons, the complaint, and the order for publication be forthwith mailed to the party if his or her address is ascertained before expiration of the time prescribed for publication of the summons. Except as otherwise provided by ...


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