United States District Court, D. Maine
MICHAEL A. TUCK, Plaintiff
CITY OF GARDINER POLICE DEPARTMENT, et al., Defendants
MEMORANDUM DECISION AND ORDER ON PLAINTIFF'S
“MOTION TO RECALL” DEFENDANT
H. RICH III UNITED STATES MAGISTRATE JUDGE.
se plaintiff Michael A. Tuck seeks “to recall
defendant Officer David Tims, ” whom he had previously
voluntarily dismissed, to effectuate service upon him through
Attorney John J. Wall, III, who represents other Gardiner
Police Department defendants (the “Town
defendants”) in this action. Motion To Recall for
Defendant (“Motion”) (ECF No. 37). The plaintiff
cannot serve Mr. Tims through Attorney Wall, who “has
not been authorized to accept service of a summons and
complaint for Mr. Tims.” Defendants City of Gardiner
Police Department, City of Gardiner Fire and Rescue, Todd
Pillsbury and Stacy Blair's Objection to Plaintiff's
Motion To Recall Defendant (“Objection”) (ECF No.
38) at 2, ¶ 6. However, because he previously
voluntarily dismissed Mr. Tims, see ECF No. 20, the
court subsequently granted his motion to amend his complaint,
see ECF No. 24 at 9, and the amended complaint - now
the operative complaint in this case - names Mr. Tims
(spelled “Timms”) as a defendant, see
ECF No. 25,  I treat the Motion as a request to extend
the deadline to effectuate service of a new summons and copy
of the amended complaint on Mr. Tims, and grant the Motion,
enlarging the service deadline to September 9, 2019, and all
remaining pretrial deadlines by 60 days.
Applicable Legal Standards
Federal Rule of Civil Procedure 4(m) provides, in relevant
Time Limit for Service. If 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 that
defendant or order that service be made within a specified
time. But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate
Fed. R. Civ. P. 4(m).
of a complaint may be made by (i) “following state law
for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is
located or where service is made[, ]” (ii)
“delivering a copy of the summons and of the complaint
to the individual personally[, ]” (iii) “leaving
a copy of each at the individual's dwelling or usual
place of abode with someone of suitable age and discretion
who resides there[, ]” or (iv) “delivering a copy
of each to an agent authorized by appointment or by law to
receive service of process.” Fed.R.Civ.P. 4(e).
addition to the traditional method of personal service, Maine
law provides for service of a summons and complaint by mail
and, upon a showing of necessity, by alternate means.
See Me. R. Civ. P. 4(c)(1), (e)-(g). A litigant
opting to use one of those methods must follow the steps
detailed in Maine Rule of Civil Procedure 4. See id.
plaintiff initiated this lawsuit on May 29, 2018, alleging
that the Town defendants, as well as Central Maine Medical
Center and Kennebec Behavioral Health, had unlawfully seized
him, used excessive force against him, and/or forced his
hospitalization in June 2015. See Complaint and
Demand for Jury Trial (ECF No. 1) ¶¶ 35-59.
August 28, 2018, Kennebec Behavioral Health filed a motion to
dismiss the complaint against it. See ECF No. 11. On
October 10, 2018, the plaintiff simultaneously filed his
response to the motion to dismiss and a motion to amend his
complaint. See ECF Nos. 15-16.
November 6, 2018, the court ordered the plaintiff to show
good cause in writing, no later than November 20, 2018, why
he had not timely served process on Mr. Tims within 90 days
of the filing of the complaint. See ECF No. 19.
November 16, 2018, the plaintiff withdrew his action against
Mr. Tims, explaining that Mr. Tims had moved and he did not
know his location, and requesting that, “if the address
or location becomes available at a further time[, ] I may be
able to have the option to call him again.” ECF No. 20.
February 13, 2019, the court granted the plaintiff's
motion to amend his complaint and granted in part, and
otherwise denied, Kennebec Behavioral Health's motion to
dismiss, which it treated as having been made against the
amended complaint. See ECF No. 24. The plaintiff
filed his amended complaint, which names “David
Timms” as a defendant, the same day. See ECF
No. 25. On February 14, 2019, ...