Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Popescu v. Shubow

United States District Court, D. Massachusetts

January 22, 2018

OSHEA M. POPESCU
v.
JONATHAN SHUBOW

          ORDER

          RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE.

         For the reasons stated below, the court (1) allows the plaintiff’s motion to file an amended complaint; and (2) directs the plaintiff to complete service.

         I. BACKGROUND

         On 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.

         On 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.

         On 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”).

         II. Discussion

         A. Motion to Amend

         Because 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.[1]

         B. Service of Summons

         It is 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.

         Here, 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).[2]

         Unless 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.