Pending is a motion to set aside service of process filed by separate Defendants Caldwell, Moore, and Fowler (docket entry #31), a motion to set aside service of process filed by Defendant Huff (#38), and a second motion to set aside service of process filed by Defendant Caldwell (#42). The Court concludes that Defendants' motions (#31, #38, and #42) should be DENIED at this time.
In their motions, Defendants contend that service of process should be set aside for Defendants Moore, Fowler and Huff because these Defendants are no longer employed by Crittenden County, and these Defendants were not properly served. Defendant Caldwell also argues that service of process should be set aside because she has not been sufficiently identified. In the motion (#42), counsel for the Crittenden County Defendants argues that the County has two female employees named "Caldwell," and requests that Plaintiff be ordered to specifically identify the proper Defendant.
In his response to the motions, Plaintiff has identified Defendant Caldwell more fully as Trekena Caldwell. He requests that the United State Marshal "resubmit service" to Trekena Caldwell (#53). Plaintiff also requested a hearing on this matter (#53).
Summonses in this case were issued for all Defendants on August 8, 2007 (#21 and #22). Since that time, summonses for Defendants Moore, Fowler, Huff, and Caldwell have not been returned -- either executed or un-executed. Thus, it is unclear whether someone employed by Crittenden County has accepted service for these parties and, if so, whether that was proper. Summonses for these Defendants must be returned to the Court either executed or un-executed before the Court can address whether service was proper. If someone has accepted service of process for these Defendants without their consent, the Defendants may, of course, move to dismiss under Rule 12(b)(5), for improper service of process.
If the summonses for Defendants Moore, Fowler, and Huff are returned un-executed because these individuals are no longer employed by Crittenden County, the County is hereby directed to file, under seal, these Defendants' last-known private mailing addresses or residential addresses so that service of process can be effected.
Service is appropriate for Defendant Trekena Caldwell. Accordingly, the Clerk of Court is requested to prepare a summons for Defendant Trekena Caldwell. The United States Marshal is directed to serve Defendant Caldwell with the summons, along with a copy of the amended complaint, without prepayment of expenses, costs, or security.
Because service has now been ordered for Trekena Caldwell, Plaintiff's motion for a hearing on his request for service of process is DENIED, as moot. Separate Defendants' Motions to Set Aside Service are DENIED as premature. Crittenden County Defendants are ordered to file, under seal, the last known addresses of Defendants Caldwell, Moore, Fowler, and Huff.
IT IS SO ORDERED this 24th day of October, 2007.
© 1992-2007 VersusLaw ...