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Tuck v. City of Gardiner Police Department

United States District Court, D. Maine

July 28, 2019

MICHAEL A. TUCK, Plaintiff
v.
CITY OF GARDINER POLICE DEPARTMENT, et al., Defendants

          MEMORANDUM DECISION AND ORDER ON PLAINTIFF'S “MOTION TO RECALL” DEFENDANT

          JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE.

         Pro 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, [1] 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.

         I. Applicable Legal Standards

Federal Rule of Civil Procedure 4(m) provides, in relevant part:
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 period.

Fed. R. Civ. P. 4(m).

         Service 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).

         In 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.

         II. Factual Background

         The 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.

         On 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.

         On 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.

         On 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.

         On 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, ...


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