DocketNumber: No. CIV 90-4103
Citation Numbers: 134 F.R.D. 269
Judges: Jones
Filed Date: 2/15/1991
Status: Precedential
Modified Date: 11/27/2022
MEMORANDUM OPINION AND ORDER
Plaintiff brought this action under 42 U.S.C. § 1983. Plaintiff’s counsel filed this
The parties have briefed the issue and the matter is ready for decision.
Two things are clear: first, that each defendant actually received a signed and sealed summons, and second, that the summonses which were personally served did not comply with Rule 4(b). Under these facts, I conclude that the plaintiff should be allowed to amend the summonses served, pursuant to Rule 4(h), because a proper summons had been obtained and actually furnished to each defendant. See Smith v. Boyer, 442 F.Supp. 62, 63 (W.D. N.Y.1977) (failure to serve summons amendable if no prejudice to defendant). The subsequent personal service of defective summonses created a technical defect which may properly be corrected because defendants have failed to allege any material prejudice to their substantial rights that would be caused by allowing such amendment.
Upon the record herein,
IT IS ORDERED:
(1) That defendants’ Motion to Dismiss or to Quash will be denied.
(2) That the plaintiff may amend the summons by having served upon each defendant a summons which will comply with F.R.Civ.P. 4(b), and such service will relate back to the original service.