Ray v. Experian, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
MICHAEL ROBERT RAY, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-0114 (RCL)
)
EXPEMAN, INC., er al., ) Fl gm E
)
Defendants. ) 2 3 2009
) NANCY MAYEF! WH{TTINGTON, CLERN
U.S, DTS'!'R}CT CUURT
MEMORANDUM OPINION
Defendant Branch Banking and Trust Company ("BB&T") moves to dismiss under Rules
4(m) and l2(b)(5) of the Federal Rules of Civil Procedure on the ground that plaintiff failed to
effect service within 120 days of the filing of the Complaint. The motion will be denied.
On December 19, 2007, the Clerk of Court received plaintiff’ s pro se Complaint and
Application to Proceed Without Prepayment of Fees and Affidavit ("lFP application"). The
Court granted the lFP application on January l5, 2008, and the Clerk of Court officially filed and
placed the Complaint and IFP application on the electronic docket on January 18, 2008.
Because plaintiff is proceeding pro se and in forma pauperis under 28 U.S.C. § l9l5, the
Court must "order that service be made by a United States marshal or deputy marshal or by a
person specially appointed by the Court. Fed. R. Civ. P. 4(0)(3). Accordingly, the Clerk issued a
summonses for BB&T on january 24, 2008. On August 19, 2008, the United States Marshal
Service notified the Clerk that service on BB&T had not been effected by certified mail.
Responding to the Court’s November 13, 2008 Order, plaintiff supplied an address for service on
BB&T. The Clerk reissued a summons on January 12, 2009. BB&T "received a copy of the
Complaint, but did not receive a summons." BB&T’s Statement of its P. & A. in Supp. of its
Mot. to Dismiss at 2 n.l. BB&T filed the instant motion on February 19, 2009, six days before
the Clerk docketed a return of service on BB&T.
"If a defendant is not served within 120 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." Fed. R. Civ. P.
4(m). However, "if the plaintiff shows good cause for the failure, the court must extend the time
for service for an appropriate period." Id. Generally, a pro se plaintiff who depends on court
officers should not be penalized for a court officer’s delay, failure or mistake in effecting service
of process. See Puett v. Blandford, 895 F.2d 630, 635 (9th Cir.1990) ("[A]n incarcerated pro se
plaintiff proceeding in forma pauperis . . . should not be penalized by having his . . . action
dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to
perform [his respective] duties"); Thomas v. Fed. Aviatz``on Admin., No. 05-2391, 2007 WL
219988, at *4 (D.D.C. Jan. 25, 2007) (finding "good cause" for the delay in service of process on
named defendants where, due to Clerk’s Office error and "[t]hrough no fault of Plaintiff" s," the
summonses and complaints were not served within 120 days after the filing of the complaint).
The Court will not dismiss this action for a delay in service of process for which the plaintiff is
not responsible. An Order accompanies this Memorandum Opinion.
@QC~/§AA/Wz:
RoY@'E C. LAMBERTH
DATE: ?/S//oj United States District Judge