United States District Court, S.D. Georgia, Dublin Division
RONALD B. GRAY, Plaintiff,
ANDRIA MAYBERRY; MYA KAY DOUGLAS; and THE TMG FIRM, LLC, Defendants.
K. EFPS UNITED STATES MAGISTRATE JUDGE.
an inmate at Wheeler Correctional Facility in Alamo, Georgia,
is proceeding pro se and in forma pauperis
February 5, 2019, the Court directed the United States
Marshals Service to effect service of process on Defendants.
(Doc. no. 25.) In accordance with the Court's Order
directing service, the Marshals Service mailed a copy of the
Third Amended Complaint and the February 5th Order by
certified mail to Defendants Mayberry, Douglas, and The TMG
Firm, LLC (“TMG”) on March 1, 2019. (Doc. nos.
29-31.) On March 5, 2019, an agent of TMG, E. Gardner, signed
the certified mail sent to TMG, and on May 1, 2019, the
certified mail was filed. (Doc. no. 29.) Defendant TMG's
waiver of service was signed on April 2, 2019, by L.P. Parker
and filed with the Court on May 10, 2019. (Doc. no. 34.)
Thus, Defendant TMG had until April 30, 2019, to answer,
move, or otherwise plead to Plaintiff's Third Amended
Complaint, but, to date, nothing has been filed.
Mayberry and Douglas did not sign for the certified mail sent
to them, which gave each of them thirty days to return the
waiver of service form. (Doc. nos. 30-31.) Thus, on May 6,
2019, the Court directed the Marshals Service to personally
serve Defendants Mayberry and Douglas and extended the
service period through July 5, 2019. (Doc. no. 32.) On July
3, 2019, the Marshals Service filed the return of service
forms for Defendant Mayberry as executed and Defendant
Douglas as unexecuted. (Doc. nos. 36, 37.)
Defendant TMG has not filed a response within the timeline
established by Rule 12(a)(1)(A)(ii), Defendant TMG is in
default pursuant to Rule 55(a). Therefore, the Court
DIRECTS the CLERK to enter
default against Defendant TMG and serve a copy of this Order
on Defendant TMG by mail at The TMG Firm, LLC, 112 W. 34th
Street, 17th and 18th Floors, New York, New York, 10120-2400,
and by email at firstname.lastname@example.org. (See
Codigo Music, LLC v. Televisa, S.A., de C.V., No.
15-21737-CIV-WILLIAMS, 2015 WL 13754256, at *1 (S.D. Fla.
August 3, 2015) (“The Court may sua sponte
direct the Clerk to enter a default as part of the
Court's inherent power to manage its docket, particularly
when . . . the parties have not provided the Court with any
grounds for their failure to prosecute or timely comply with
the Federal Rules.”); Allstate Property and
Casualty Insurance Company v. Haslup, NO.
2:10-CV-0191-WCO, 2012 WL 12953465, at *6-7 (N.D.Ga. Jan. 12,
2012) (holding defendant in default sua sponte as
inherent power of the court).
Defendant Mayberry, the Marshals Service originally mailed a
copy of the Third Amended Complaint and the February 5th
Order by certified mail to Philadelphia, Pennsylvania, but
the mail was returned undeliverable. (Doc. no. 31.) Upon the
Court's May 6th Order directing personal service, the
Marshals Service obtained a new address for Defendant
Mayberry in Edgewater, New Jersey. (Doc. no. 37, p. 2.) The
Marshals Service met her boyfriend, David Kenny, and he
signed the service acknowledgment form. (Id. at 1.)
The Marshals Service noted on the form Mr. Kenny's
statement Defendant Mayberry did not live at that address,
she resided in Philadelphia, Pennsylvania, and he would pass
it along to her. (Id.) If this note is correct,
service was not proper because Federal Rule of Civil
Procedure 4(e)(2)(B) requires delivery of the summons and
complaint “at [her] dwelling or usual place of abode
with someone of suitable age and discretion who resides
Richardson v. Johnson, 598 F.3d 734 (11th Cir.
2010), the Eleventh Circuit addressed the propriety of
dismissing a defendant in a § 1983 action brought by a
pro se prisoner proceeding IFP, where the defendant
had been dismissed for failing to timely serve the defendant.
In Richardson, a prison guard defendant could not be
served at the prison because he no longer worked there.
Richardson, 598 F.3d at 739-40. In addressing the
prisoner-plaintiff's challenge to the dismissal of this
defendant, the Eleventh Circuit ruled that “[i]t is
unreasonable to expect incarcerated and unrepresented
prisoner-litigants to provide the current addresses of . . .
defendants who no longer work at the prison.”
Id. The Eleventh Circuit went on to conclude that as
long as an incarcerated plaintiff provides enough information
to identify a defendant,  the Marshal must use “reasonable
effort” to locate that defendant and effect service of
process before the defendant can be dismissed. Id.
Plaintiff provided the full name of Defendant Mayberry, as
well as the address of 1118 Atwood Road, Philadelphia,
Pennsylvania, 16151. (Doc. no. 21, p. 2.) Although the Court
understands the certified mail was returned as undeliverable
to that address, it does not appear from the return of
service forms the Marshals Service ever attempted to
personally serve Defendant Mayberry at the Philadelphia,
Pennsylvania address despite learning she actually resided in
pursuant to Richardson and because service on David
Kenny as to Defendant Mayberry was improper, the Court
DIRECTS the United States Marshal to use
reasonable efforts to locate and effect personal service of
process on Defendant Mayberry at 1118 Atwood Road,
Philadelphia, Pennsylvania, 16151, within sixty days of the
date of this Order. Because the service deadline has expired,
the Court nunc pro tunc EXTENDS the
deadline for service as to Defendant Mayberry to sixty days
from the date of this Order. See Fed R. Civ. P. 4(m)
(“[I]f the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate
period.”); Richardson, 598 F.3d at 739-40
(“[P]risoner-litigants who provide enough information
to identify the . . . defendant have established good cause
for Rule 4(m) purposes.”) Service shall be effected in
accordance with the Court's February 5th Order, except
the Marshals Service shall not request that Defendant
Mayberry waive formal service of the summons but shall
personally serve Defendant Mayberry with a summons, a copy of
the Third Amended Complaint, (doc. no. 21), the Court's
February 5th Order, (doc. no. 25), and a copy of this Order.
The Marshals Service is FURTHER DIRECTED to
notify the Court within sixty days of the date of this Order
whether Defendant Mayberry has been located and served.
the certified mail sent to Defendant Douglas at Elkis Park,
Pennsylvania, the address provided by Plaintiff, was returned
as unclaimed, the Marshals Service obtained two additional
addresses for Defendant Douglas in Philadelphia, Pennsylvania
and Los Angeles California. (Doc. nos. 30, 36.) However, the
Marshals Service learned Defendant Douglas did not reside at
the Philadelphia, Pennsylvania address because Defendant
Douglas's sister-in-law spoke with the Marshals Service
and stated Defendant Douglas resides in Los Angeles,
California. (Id.) The Marshals Service then
attempted to locate and serve Defendant Douglas in Los
Angeles, California, but ...