United States District Court, D. Massachusetts
OSHEA M. POPESCU
RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE.
reasons stated below, the court (1) allows the
plaintiff’s motion to file an amended complaint; and
(2) directs the plaintiff to complete service.
December 4, 2017, pro se litigant Oshea Popescu, who
resides in North Carolina, commenced this action against
Jonathan Shubow, a Massachusetts resident. Popescu paid the
filing fee, and a summons issued the day the after the
complaint was filed.
January 9, 2018, Popescu filed a request for a notice of
default, representing that more than twenty-one days had
expired since the complaint had been filed and that the
defendant had failed to answer. In response to that request,
the court entered an order stating that Popescu had failed to
file proof of service.
January 19, 2018, Popescu filed a motion to amend her
complaint. She also states therein that she was under the
“wrong impression” that service would be executed
by the United States Marshals Service (“USMS”).
Motion to Amend
Popescu may amend her complaint as matter of right,
see Fed. R. Civ. P. (a)(1) (providing that a party
may amend its pleading once as a matter of course within a
given time frame), the court will grant the motion to amend
her complaint. The Clerk shall docket the proposed amended
complaint as the amended complaint.
Service of Summons
not the practice of this court to order the USMS to complete
service of summons in an action brought by a pro se
plaintiff who has paid the filing fee. Where the court
authorizes a plaintiff to proceed in forma pauperis,
the court must also order that “service be made by a
United States marshal or deputy marshal or by a person
specially appointed by the court,” even if the party is
represented by counsel. Fed. R. Civ. P. (c)(e). In some
circumstances, especially in cases with numerous defendants,
a plaintiff is able to pay the filing fee but cannot afford
to pay the cost of service. Any such plaintiff may file a
motion for leave to proceed in forma pauperis,
notwithstanding that she or he has paid the filing fee, and
ask that the Court order the USMS to complete service, with
all costs of service to be advanced by the United States.
there is no basis for the court to order service by the USMS.
Popescu paid the filing fee and has not asked for an order
requiring the USMS to complete service. In addition, the
court does not have any information about her financial
situation. See 28 U.S.C. § 1915(a) (providing
that person seeking leave to proceed without prepayment of
fees and costs must file an affidavit that includes a
statement of “all assets” of the applicant).
Further, there is only one defendant in this action. Finally,
Popescu may try to avoid paying the filing fee by asking the
defendant to waive service of the summons. See Fed.
R. Civ. P. 4(d).
Popescu obtains a waiver of service from the defendant, she
is responsible for arranging service of the summons and the
complaint on the defendant in accordance with Rule 4 of the
Federal Rules of Civil Procedure:
(e) Serving an Individual Within a Judicial District
of the United States. Unless federal law provides
otherwise, an individual-other than a minor, an incompetent
person, or a person whose waiver has been filed-may be served