United States District Court, E.D. Arkansas, Jonesboro Division
Kristine G. Baker, United States District Judge.
the Court is plaintiff Lakhraj Manohar's motion for
default against defendants Lieutenant Baxter and Vandergriff
(Dkt. No. 28). Mr. Manohar argues that more than 21 days have
passed since Lieutenant Baxter and Mr. Vandergriff were
served, and therefore he requests a default judgment against
Lieutenant Baxter and Mr. Vandergriff (Id.). For the
reasons discussed below, the Court denies Mr. Manohar's
motion for default and instead directs the United States
Marshal to attempt service upon the named defendants in
strict compliance with the terms of this Order. Should the
United States Marshal have any questions or concerns about
the terms of this Order, the United States Marshal is asked
to confer directly with Court staff.
August 25, 2017, the Court granted Mr. Manohar's motion
for service (Dkt. No. 16). Summons were issued for defendants
Lieutenant Baxter, Mr. Ollo, and Mr. Vandergriff. As Mr.
Manohar has been granted leave to proceed in forma
pauperis, the Court ordered that service be made by a
United States Marshal (Id.). See Fed. R.
Civ. P. 4(c)(3). All three summons for the defendants were
returned “executed” to the Court on September 13,
2017, according to the Court's docket (Dkt. Nos. 17, 18,
19). Mr. Manohar moved for default judgment against all three
defendants because they did not answer within 21 days of
being served (Dkt. No. 21). The Court denied this motion
because service was not effective on defendants, and the
Court ordered the United States Marshal for the Eastern
District of Arkansas to serve the defendants via
certified mail, with a return receipt requested and delivery
restricted to defendants (Dkt. No. 23 (emphasis added)).
These summonses were reissued as to the defendants and
summons for Lieutenant Baxter and Mr. Vandergriff were
returned as “executed” according to the
Court's docket (Dkt. Nos. 25, 26). The summons for
separate defendant Mr. Ollo was returned
“unexecuted” according to the Court's docket
(Dkt. No. 27). None of the defendants have filed answers, and
Mr. Manohar has now moved for a default judgment against
Lieutenant Baxter and Mr. Vandergriff (Dkt. No. 28).
Court concludes that service was not effective on Lieutenant
Baxter or Mr. Vandergriff. Because service was not effective
on Lieutenant Baxter and Mr. Vandergriff, the Court denies
without prejudice the motion for default judgment (Dkt. No.
Federal Rule of Civil Procedure 4(e), an individual may be
served in any of the following ways: (1) following the state
laws for service where the individual is located; (2)
delivering a copy of the summons and complaint to the
individual personally; (3) by leaving a copy of the summons
and complaint at the individual's usual place of abode;
or (4) by delivering a copy of the summons and complaint to
an authorized agent of the individual. Fed.R.Civ.P. 4(e). Per
Arkansas Rule of Civil Procedure 4(d)(8)(A)(i), an individual
may be served via certified mail in the following
[B]y any form of mail addressed to the person to be served
with a return receipt requested and delivery restricted
to the address or the agent of the addressee. The
addressee must be a natural person specified by name, and the
agent of the addressee must be authorized in accordance with
U.S. Postal Service regulations.
Ark. R. Civ. P. 4(d)(8)(A)(i) (emphasis added).
Baxter and Mr. Vandergriff are individuals. It appears that
an individual named “Maggie Williams” received
the summons that were issued for Lieutenant Baxter and
Mr.Vandergriff (Dkt. Nos. 25, 26). There is no proof that
service was personally made on defendants. As the summons
were delivered to St. Bernard's Hospital in Jonesboro,
Arkansas, such service was not left at the defendant's
“usual place of abode.” While the
“agent” box on the return receipts for Lieutenant
Baxter and Mr. Vandergriff are marked and apparently were
marked by Ms. Williams,  the “Certified Mail Restricted
Delivery” boxes are not marked, and the task
to mark those boxes falls to the United States Marshal (Dkt.
Nos. 25, at 2; 26, at 2). The responsibility for effectuating
service properly under the rules of procedure based upon
information provided by plaintiff falls upon the Court and
the United States Marshal under the circumstances. See
Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993)
(per curiam) (determining that an in forma pauperis
plaintiff should not be penalized by the United States
Marshal's failure to obtain proper service). Because
Arkansas law requires that service by certified mail also be
“delivery restricted to the addressee, ” the
Court concludes that Lieutenant Baxter and Mr. Vandergriff
were not properly served under the Federal Rules.
the mail directed to separate defendant Mr. Ollo was returned
unexecuted (Dkt. No. 27). Mr. Manohar is directed to provide
to the Court in writing within 14 days from the entry of this
Order confirmation that the Court has the correct address for
Mr. Ollo or updated address and contact information for Mr.
Ollo to permit the Court to ensure effective, proper service.
Lee, 991 F.2d at 489 (determining that an in
forma pauperis plaintiff is responsible for providing
the United States Marshal with proper address for service of
process on a defendant). If Mr. Manohar fails to do so, the
Court may dismiss Mr. Manohar's claims against Mr. Ollo
for failure to serve timely Mr. Ollo. Fed.R.Civ.P. 4
therefore ordered that:
Manohar's motion for default judgment is denied without