Opinion
Civil Action No. 18-cv-01003-REB-STV
01-08-2019
MARK PALMER, Plaintiff, v. THE CITY & COUNTY OF DENVER et al., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This civil action is before the Court on three Motions filed by Plaintiff: (1) Plaintiff's "Pro Se Pleading Form," which the Court construes as Plaintiff's motion to proceed in forma pauperis ("IFP") ("Motion to Proceed IFP") [#9]; (2) Plaintiff's "Motion [to] Request [United States] Marshal[s] Service [("USMS") Service] of Summons Upon Defendants" ("Motion for Service by USMS") [#65]; and (3) Plaintiff's "Request to Change Venue to District of Massachusetts" ("Motion to Transfer") [#91] (collectively "the Motions"). The Motions have been referred to this Court. [##67, 94, 96] This Court has carefully considered the Motions and related briefing, the entire case file and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons, the Court respectfully RECOMMENDS that the Motions be DENIED.
I. BACKGROUND
Plaintiff, proceeding pro se, filed the instant action alleging that Defendants violated various state and federal laws during his employment with, and ultimate termination from, the City and County of Denver. [#20] Plaintiff originally filed this action in April 2018. [#1] Plaintiff was twice ordered to file an amended complaint for failure to comply with Federal Rule of Civil Procedure 8. [##4, 10] Plaintiff filed his Second Amended Complaint, the operative complaint in this matter, on July 26, 2018. [#20]
"A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, at 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "The Haines rule applies to all proceedings involving a pro se litigant." Id. at 1110 n.3. The court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
On October 26, 2018, this Court entered a minute order noting that Plaintiff had failed to serve any of the Defendants within the time limit for effecting service under Federal Rule of Civil Procedure 4(m). [#29] United States District Court Judge Robert E. Blackburn ordered Plaintiff to show cause why his claims should not be dismissed for failure to effectuate timely service of process pursuant to Rule 4(m). [#33] Judge Blackburn discharged the Order to Show Cause based on Plaintiff's representation that he had provided copies of the summonses and the Second Amended Complaint to a process server to be served on all Defendants. [#35] Judge Blackburn ordered Plaintiff to file proofs of service for all Defendants by no later than December 13, 2018. [Id. at 2]
On December 13, 2018, Plaintiff filed a Notice of Proof of Service. [#50] That document includes affidavits for personal service of the Workforce Development Board [#50-1 at 1-2], the Workforce Investment Board [#50-2 at 1], Valerie McNaughton [#50-6 at 1], and William Glassman [#50-13 at 1]. Plaintiff's process server was unable to serve Defendants Chiquita McGowin [#50-3]; Suzanne Iversen [#50-4]; Amy Edinger [#50-5]; Rebecca Balu [#50-7], Kathleen McCleary [#50-8], Cindy Ackerman [#50-11], or Ryan Brandt [#50-12]. Plaintiff has provided no evidence of attempts to serve Defendants Hinderlighter, Taylor, Merrick, or the Career Service Authority.
Plaintiff's process server was also unable to serve Todd Nielsen [#50-9] or Lisa Lujan [#50-10], but neither of these individuals are Defendants in this matter [see #20].
Plaintiff claimed that Defendants McGowin, Iversen, Edinger, Balu, McCleary, Ackerman, and Brandt were served by mail. [##50-3, 50-4, 50-5, 50-7, 50-8, 50-11, 50-12] Plaintiff also filed a list of unexplained purchase receipts for first-class postage, apparently through the United States Post Office. [#39] As this Court explained, to the extent Plaintiff has attempted to serve any Defendants by mail, service by mail is not a proper method of service under Federal Rule of Civil Procedure 4(e) or Colorado law. [#43 (citing Colo. R. Civ. P. 4 (g) ("[S]ervice by mail or publication shall be allowed only in actions affecting specific property or status or other proceedings in rem."); Fed. R. Civ. P. 4(e)(1) ("[A]n individual . . . may be served . . . [by] 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."))]. At a hearing on January 7, 2019, this Court denied Plaintiff's Ex Parte Motion for Exemption of Standard Process Service [#51] to the extent Plaintiff sought to serve Defendants by United States Postal Service First Class Mail [#95].
II. ANALYSIS
In the instant Motions, Plaintiff seeks to proceed IFP and requests the USMS to effect service on his behalf. [##9, 65] Plaintiff also moves to transfer this matter to the United States District Court for the District of Massachusetts. [#91] The Court addresses each Motion in turn.
A. Motion to Proceed IFP
On June 5, 2018, Plaintiff filed a document entitled "Pro Se Pleading Form." [#9] Based on representations from Plaintiff at a hearing held on January 7, 2019, the Court understood this document to be Plaintiff's Motion to Proceed IFP [#95], and the Motion was referred to this Court [#96].
Pursuant to 28 U.S.C. § 1915(a)(1), a court "may authorize the commencement . . . of any suit . . . without prepayment of fees . . ., by a person who submits an affidavit" stating all assets and that "the person is unable to pay such fees." In Plaintiff's Motion to Proceed IFP, Plaintiff indicated his annual income and described his monthly assets and expenses. [#9] Plaintiff also, however, remitted the Court's filing fee. [See #1] The Tenth Circuit has "uniformly held that payment of filing fees causes requests to proceed IFP to become moot." Burgess v. Daniels, 578 F. App'x 747, 751 (10th Cir. 2014) (collecting cases); see also Golden v. Kaiser, 1 F. App'x 841, 841 n.1 (10th Cir. 2001) (denying as moot appellant's request for refund of previously paid filing fee and to be allowed to proceed IFP, noting that the appellant "ha[d] not identified any precedent supporting such a request and th[e] court ha[d] not discovered any"); Jones v. Richardson, No. 08-3195-RDR, 2010 WL 618132, at *1 (D. Kan. Feb. 19, 2010) ("The court need not determine whether plaintiff has filed a motion supported by sufficient financial information because both motions for leave to proceed [IFP] were rendered moot by his payment of the filing fee.").
Because Plaintiff has paid the Court's filing fee here, any request to proceed IFP is moot. Accordingly, the Court RECOMMENDS that Plaintiff's Motion to Proceed IFP [#9] be DENIED.
B. Motion for Service by USMS
Plaintiff also seeks service of the summonses and his Second Amended Complaint upon Defendants by USMS "so that there are no questions regarding receipts of service." [#65 at 2] Pursuant to Federal Rule of Civil Procedure 4(c)(3), "[a]t the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court." (emphasis added). Accordingly, where, as here, Plaintiff is not proceeding IFP, "the decision whether to order the U.S. Marshal to serve the Summons and Complaint is left to the sound discretion of the Court." York v. Fed. Bureau Of Prisons, No. 07-cv-01297-EWN-KLM, 2008 WL 2410416, at *2 n.1 (D. Colo. June 11, 2008). As this District has made clear, a plaintiff must "justify entry of an Order requiring the Marshal's Service to serve . . . defendants," and "court orders directing service by marshal should not be issued unless they are really necessary." Id. at *2 (second quoting Advisory Committee Notes for Fed. R. Civ. P. 4, 93 F.R.D. 255, 262 (1981)). A plaintiff is responsible "to first 'seek service by private means whenever feasible rather than impose the burden on the Marshal's Service.'" Id. (quoting 93 F.R.D. at 262). Even if the court orders the USMS to effect service, the non-IFP plaintiff "is responsible for payment of the cost of service, including any reasonable steps taken by USMS to locate the defendants for the purpose of effecting service of summons." Bloom v. McPherson, No. 07-3258-SAC, 2010 WL 2025228, at *2 (D. Kan. May 20, 2010).
Here, Plaintiff has failed to demonstrate the requisite necessity of service by the USMS. Plaintiff argues that the process server and the City Attorney's Office have exhibited "extreme interference" in serving process [#65 at 2], but there is no evidence of such interference before the Court. Instead, affidavits from Plaintiff's process server indicate that the Mayor's Office was unable to accept service for numerous Defendants, and that Plaintiff provided addresses where Defendants did not live or work. [##50-3, 50-4, 50-5, 50-7, 50-8, 50-11, 50-12] In short, Plaintiff has simply failed his responsibility to provide proper addresses for most Defendants in this matter. Accordingly, if the Court's Recommendation that Plaintiff's Motion to Proceed IFP be denied is adopted, the Court further RECOMMENDS that Plaintiff's Motion for Service by USMS [#65] be DENIED.
C. Motion to Transfer
Finally, in Plaintiff's Motion to Transfer, Plaintiff seeks to transfer this matter to the United States District Court for the District of Massachusetts. [#91] "A court must have . . . . power over the parties before it (personal jurisdiction) before it can resolve a case." Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553, 562 (2017). The plaintiff bears the burden of establishing personal jurisdiction over defendants. See, e.g., Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1417 (10th Cir. 1998). A court has specific jurisdiction over a defendant if sufficient minimum contacts show that: (1) the defendant has purposefully availed itself of the privilege of conducting activities or consummating a transaction in the forum state; and (2) the litigation results from alleged injuries that arise out of or relate to those activities. Emp'r Mut. Cas. Co. v. Bartile Roofs Inc., 618 F.3d 1153, 1160 (10th Cir. 2010). "[G]eneral jurisdiction is proper only when the defendant's contacts with the forum state are (1) continuous and systematic and (2) sufficient to render it at home there." Am. Fid. Assurance Co. v. Bank of N.Y. Mellon, 810 F.3d 1234, 1241-42 (10th Cir. 2016) (analyzing general jurisdiction in light of Daimler AG v. Bauman, 134 S. Ct. 746 (2014)).
In Plaintiff's Motion to Transfer, he simply indicates that his "location in Massachusetts prevents [him] from taking advantage" of the Court's Federal Pro Se Clinic and "from quick access to the District Court of [Colorado]." [#91 at 1] He also argues that "[p]roceeding with this case in the District of Colorado will be logistically and financially impossible for [him] and present too large a burden to be physically available for [hearings]." [Id.] But there are no allegations in Plaintiff's Second Amended Complaint or the Motion that would suggest any suit-related contacts between Defendants and the state of Massachusetts. Nor are there any allegations that Defendants have "continuous and systematic" contacts with Massachusetts such that they would be at home in that state. Accordingly, the United States District Court for the District of Massachusetts would lack jurisdiction over Defendants. Moreover, at the heart of this matter is Plaintiff's employment with, and subsequent termination from, the City and County of Denver [#20] and thus the majority of (if not all) the evidence and witnesses will be in this District. For these reasons, the Court RECOMMENDS that Plaintiff's Motion to Transfer [#91] be DENIED.
The Court ordered that Plaintiff's Request to Change Venue to District of Massachusetts [#91] be denied at the hearing on January 7, 2019 [#95]. That Order should have been framed as a Recommendation. See D.C.COLO.LCivR 72.3(a). Accordingly, the Court withdraws the previous Order denying Plaintiff's Motion to Transfer [#91] and instead issues the foregoing Recommendation.
D. CONCLUSION
For the foregoing reasons, the Court RECOMMENDS that Plaintiff's Motion to Proceed IFP [#9] and Motion for Service by USMS [#65] be DENIED. If these Recommendations are adopted, the Court further RECOMMENDS that Plaintiff be allowed an additional three weeks within which to serve the remaining Defendants in this matter. The Court also RECOMMENDS that Plaintiff's Motion to Transfer [#91] be denied. Finally, the Status Conference set for January 22, 2019 at 1:30 P.M. is VACATED. DATED: January 8, 2019
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the Magistrate Judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review Magistrate Judge's recommendation de novo despite lack of an objection does not preclude application of "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of Magistrate Judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the Magistrate Judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge