IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 16, 2012
MICHAEL R. JONES,
FOREST SERVICE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Plaintiff, proceeding in propria persona, brings this civil action. A scheduling conference for this case was held on November 14, 2012, at 10:00 a.m., before the undersigned in Redding, California. Plaintiff appeared in person; there was no appearance from any defendant.
Plaintiff has not successfully served the defendants named in this action. He attempted service on August 24, 2012, by sending the summons and complaint himself to the United States Attorney and the Attorney General of the United States, utilizing Federal Express. None of the named defendants were sent or served with a copy individually.
Rule 4 of the Federal Rule of Civil Procedure governs the proper service of the summons and complaint. Rule 4(c)(2) provides that service may be completed by "[a]ny person who is at least 18 years old and not a party . . . ." Service of the United States and its agencies is governed by Rule 4(i), which requires delivery of the summons and complaint to the United States attorney, or a party may "send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office, plus a copy by registered or certified mail to the Attorney General of the United States. Fed. R. Civ. Proc. 4(i)(1). In addition, to serve an agency, officer or employee of the United States in their official capacity, "a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee." Fed. R. Civ. Proc. 4(i)(2). Finally, in order to properly serve an officer or employee sued in their individual capacity, "a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or
(g)." Fed. R. Civ. Proc. 4(i)(3).
The service plaintiff attempted was insufficient for several reasons. First, pursuant to Rule 4(c), service is to be completed by a non-party person over the age of 18. Plaintiff did not have someone who is not a party to this action serve the summons and complaint, but rather attempted to do so himself. Next, plaintiff sent the summons and complaint by Federal Express. Proper service of the United States requires service by registered or certified mail. Finally, plaintiff's service attempt was incomplete as none of the individual defendants were served. The named defendants to this action consist of an agency and/or employee, sued in either their official or individual capacity. Thus, a copy of the summons and complaint must also be served on the individual defendant(s).
Plaintiff will be provided an opportunity to cure the defects in service. However, because a significant amount of time has passed since the complaint was filed, service must be accomplished within the next 60 days. See Fed. R. Civ. Proc. 4(m) (requiring service to be completed within 120 days after the complaint is filed).
Accordingly, IT IS HEREBY ORDERED that
1. Plaintiff shall properly serve the defendants in this action, pursuant to Rule 4(c) and (i) of the Federal Rules of Civil Procedure, within 60 days of the date of this order; and
2. Plaintiff shall file with the court a proof of service indicating the completion of proper service within 10 days after service is completed.
© 1992-2012 VersusLaw Inc.