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Willingham v. United States

United States District Court, S.D. Georgia, Augusta Division

May 24, 2019




         On May 17, 2019, the Court issued a Report and Recommendation (“R&R”) recommending dismissal of Plaintiff's complaint without prejudice for failure to pay the filing fee. (Doc. no. 7.) Plaintiff has now submitted the $400.00 filing fee. Accordingly, the Court VACATES the May 17th Report and Recommendation. (Id.)

         Because Plaintiff paid the $400.00 filing fee in the above-captioned case and is proceeding pro se, the Court will provide Plaintiff with some basic instructions regarding the development and progression of this case.

         Initially, Plaintiff is responsible for serving Defendants. Because it is not immediately apparent whether Plaintiff intends to sue Crowder Stewart, LLP, as a partnership or if he is intending to sue Ken Crowder and David Stewart, partners of Crowder Stewart, LLP, as individual defendants, (see doc. no. 1, pp. 2-5), the Court will provide instructions on three types of service.[1] In order to properly request individual defendants waive personal service, Plaintiff must

(1) obtain from the Clerk of Court an appropriate number of copies of
(a) the notice of lawsuit and request to waive service of summons form, and
(b) the waiver of service of summons form;
(2) complete both forms; and
(3) mail the completed notice form, along with a copy of the file-stamped complaint and two waiver forms, to Defendant by first class mail, with a prepaid means for returning the waiver form, and request that Defendant waive formal service of the summons.

Fed. R. Civ. P. 4(d).

         Individuals, corporations, partnerships, and associations have a duty to avoid unnecessary expenses of serving the summons, and a defendant who fails to sign and return a waiver without good cause must bear the expenses incurred in making personal service. Fed.R.Civ.P. 4(d)(1) & (2). A defendant whose return of the waiver is timely does not have to answer the complaint until sixty days after the date Plaintiff mails the request for waiver. Fed.R.Civ.P. 4(d)(3). However, should a defendant choose not to waive personal service of the summons and complaint, Plaintiff is still responsible for properly effecting personal service. Fed.R.Civ.P. 4(c), (e) & (h).

         For agencies, corporations, officers, or employees of the United States subject to service under Fed.R.Civ.P. 4(i), Plaintiffs must first obtain from the Clerk of Court an appropriate summons for each defendant and deliver a copy of the summons and the original complaint, via registered or certified mail, to (1) the civil process clerk at the office of the United States Attorney for the Southern District of Georgia; (2) the Attorney General of the United States, Washington, D.C.; and (3) the officer or agency being sued.[2] Fed.R.Civ.P. 4(i)(1). Plaintiffs must serve Defendants within ninety days from the date their complaint was filed, and failure to do so may result in the dismissal of Defendants or the entire case. Fed.R.Civ.P. 4(m).

         IT IS ORDERED that Plaintiff shall serve upon Defendants, or upon their attorney if appearance has been entered by counsel, a copy of every further pleading or other document submitted to the Court. Plaintiff shall include with the papers to be filed a certificate stating the date a true and correct copy of any document was mailed to Defendants or their counsel. Fed.R.Civ.P. 5; Loc. R. 5.1. Every pleading shall contain a caption setting forth the name of the court, the title of the action, and the file number. Fed.R.Civ.P. 10(a). Any paper received by a District Judge or Magistrate Judge that has not been properly filed with the Clerk of Court or that fails to include a caption or certificate of service will be returned.

         It is Plaintiff's duty to cooperate fully in any discovery that may be initiated by Defendants. Upon being given at least five days' notice of the scheduled deposition date, Plaintiff shall appear and permit his deposition to be taken and shall answer, under oath and solemn affirmation, any question that seeks information relevant to the subject matter of the pending action. Failing to answer questions at the deposition or giving evasive or incomplete responses to questions will not be tolerated and may subject Plaintiff to severe sanctions, including dismissal of this case. Defendants shall ...

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