United States District Court, W.D. Missouri, Western Division
ORDER (1) DISMISSING PLAINTIFF'S CLAIMS AGAINST
DEFENDANTS RUCKER AND LYNN WITHOUT PREJUDICE, (2) DENYING
PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT, AND (3) DENYING
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT.
SERVICE OF PROCESS
to Rule 4(m) of the Federal Rules of Civil Procedure,
“[i]f a defendant is not served within 90 days after
the complaint is filed, the court - on motion or on its own
after notice to the plaintiff - must dismiss the action
without prejudice against the defendant or order that service
be made within a specified time.” Fed.R.Civ.P. 4(m). In
June 2016, Plaintiff initiated this matter with the filing of
a motion for leave to proceed in forma pauperis. On
January 23, 2017, the Court granted Plaintiff's motion,
and instructed the Clerk's Office to file Plaintiff's
Complaint. Doc. #13. That same day, the Court directed
Plaintiff to return completed process forms to the
Clerk's Office within twenty-one days. Doc.
The Court's Order was returned as undeliverable due to
Plaintiff's failure to update his mailing address.
Id. On March 2, 2017, the Court resent the January
23, 2017 Order to Plaintiff's new address. Doc. #17.
Plaintiff did not respond to the Court's Order or submit
completed process forms.
March 27, 2017, the Court issued an Order directing Plaintiff
to return completed process forms by April 14, 2017, or show
cause why the matter should not be dismissed for failure to
serve Defendants. Doc. #18. Plaintiff responded, stating he
had “already served the defendants, ” and had
proof of service. Doc. #19. But Plaintiff did not file any
documents establishing proof of service.
April 5, 2017, the Court directed Plaintiff to file proofs of
service no later than April 19, 2017. Doc. #22. On April 13,
2017, a document entitled “proof of service” was
filed by Plaintiff, indicating service on Defendant City of
Concordia (“the City”). Doc. #24. Plaintiff did
not file proof that the Concordia Police Department, Aaron
Rucker, or Jim Lynn had been properly served.
1, 2017, the Court ordered Plaintiff to show cause no later
than May 15, 2017, why Plaintiff's claims against the
Concordia Police Department, Rucker, or Lynn should not be
dismissed for failure to serve. Doc. #32. The Court informed
Plaintiff that “[f]ailure to do so will result in the
dismissal of Plaintiff's claims against these defendants
without further notice.” Id.
the Court entered its May 1, 2017 Order, counsel for the
Concordia Police Department entered his appearance, and the
Concordia Police Department filed a motion to dismiss. Docs.
#37-38. However, Plaintiff still has not filed anything
establishing he served Rucker or Lynn. Although the Court has
given Plaintiff the opportunity to effectuate service through
the United States Marshal by providing completed service
forms to the Clerk's Office as well as ample time for
Plaintiff to complete service himself, Plaintiff has not
established Rucker and Lynn have been served. Pursuant to
Rule 4(m) of the Federal Rules of Civil Procedure,
Plaintiff's claims against Rucker and Lynn are dismissed
PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
April 27, 2017, Plaintiff filed a motion for default
judgment. Doc. #28. Generally, a defendant (other than the
United States or its agencies, officers, and employees) must
respond to a complaint with an answer or Rule 12 motion
within twenty-one day days after being served with the
summons and complaint. Fed.R.Civ.P. 12(a)(1)(A)(i), 12(a)(4).
A court may enter default judgment against a defendant found
to be in default for failure to plead or otherwise defend.
City of Concordia is the only defendant for which Plaintiff
established service. Doc. #24. Based upon the information
provided to the Court, the City was served on April 6, 2017.
Id. Here, the City filed a motion to dismiss on
April 21, 2017, less than twenty-one days after being served.
Doc. #25. Accordingly, the City timely responded to
Plaintiff's Complaint, and the Court denies
Plaintiff's motion to enter default against the City.
Likewise, the Court declines to enter default against the
Concordia Police Department because Plaintiff has not
established the Concordia Police Department was properly
served and failed to timely respond.
15, 2017, the Court received a document entitled
“Petition” from Plaintiff. Doc. #41. The Court
notes Plaintiff also filed the same document with the Eighth
Circuit Court of Appeals. 8th Cir. Case No. 16-3671. It
appears Plaintiff is seeking relief from Eighth Circuit, not
this Court. To the extent Plaintiff is seeking relief from
this Court, the Court addresses his requests below.
Plaintiff asks that this matter be reopened. Since this
matter was remanded by the Eighth Circuit, it has remained
open. This Court has not closed this matter. For this reason,
this request is denied.
Plaintiff asks for a change of judge. This is the not first
time Plaintiff has sought a change of judge. See
Docs. #20, 22. Plaintiff, citing to “federal civil
procedure, ” argues, among other things, the Court
“seems to provide the defense for the City of
Concordia, ” and “[t]he Defense and the judge
seem to be working together.” Doc. #41, at 1. The Court
is not working with or providing the defense for Defendants
in this matter. Plaintiff also states the Court is using
“check envelopes with bogus name and address papers to
further antagonize me.” Id. at 2. It is
unclear as to what Plaintiff ...