United States District Court, W.D. Oklahoma
CHAD A. COBURN, Plaintiff,
CHAD MILLER, et al., Defendants.
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE
progress of this case has stalled due to the attempted but
unsuccessful service of Plaintiff's Complaint on
Defendants Mayhem, Amin, Battles, and Hilligoes. On March 28,
2017, the United States Marshals Service (“USMS”)
filed “executed” returns of service for each of
these four Defendants, stating that the Defendants had been
served but detailing facts about the method of service that
indicated something less than what was required under the
relevant rules and statutes. See Returns (Doc Nos.
25, 26, 27, 28); see also Order of Dec. 8, 2017
(Doc. No. 42). When these Defendants did not answer or
otherwise respond to the Complaint, Plaintiff (after several
extensions) filed what was in effect both a notice of default
and a motion for default judgment. See P.'s Mot.
(Doc. No. 38). Upon Plaintiff's motion, the Court
Clerk-acting administratively, that is accepting the returns
of service on their face without evaluating whether service
was in fact properly made- entered default on November 30,
2017, against the four defendants. See Entry of
Default (Doc. No. 41). However, on December 8, 2017, the
Court-upon evaluating the attempted service-denied
Plaintiff's request for judgment and ordered that the
entry of default previously entered be stricken because
“the record does not reflect proper service” on
the four defendants. See Order of Dec. 8, 2017 (Doc.
No. 42) at 1. Plaintiff subsequently filed a
“Motion to Alter Judgment” (Doc. No. 45), which
was in effect a motion to reconsider the December 8, 2017
Order. That motion has been denied. See Order of
Jan. 12, 2018 (Doc. No. 46).
resulting question is whether Plaintiff's Complaint
should be dismissed for failure to serve the remaining
defendants or whether Plaintiff should be provided another
opportunity to attempt to do so. When, as here, the USMS is
ordered to attempt service on a pro se litigant's behalf,
that does not alter the fact that “service is
ultimately Plaintiff's responsibility.”
See Order Requiring Serv. & Special R. (Doc. No.
16) at 2. However, “when a court finds that service is
insufficient but curable, it generally should quash the
service and give the plaintiff an opportunity to re-serve the
defendant.” Pell v. Azar Nut Co., 711 F.2d
949, 950 n.2 (10th Cir. 1983). Moreover, when service by the
USMS is inadequate and there is “no evidence in the
record that [a plaintiff] failed to cooperate with the U.S.
Marshals or [was] otherwise not entitled to their service,
” a court should not hold that plaintiff
“culpable for [the USMS's] failure to comply with
the Federal Rules of Civil Procedure or the court's
orders.” Olsen v. Mapes, 333 F.3d 1199, 1205
(10th Cir. 2003).
case, it is appropriate to grant an extension of time and
allow the plaintiff an opportunity to re-attempt service
through the USMS. See Fed. R. Civ. P. 4(m);
Olsen, 333 F.3d. at 1205 (finding that
“[t]he court should ensure that service is perfected on
[the Defendant] by U.S. Marshal” when Plaintiff was not
responsible for the inadequacy of the original attempt);
Silverman v. Prisoner Transp. Serv. of Am., No.
CIV-15-1093-F, Order (W.D. Okla. July 6, 2016) (permitting
Plaintiff an opportunity to re-attempt service via the USMS
after the court determined that the USMS's first
attempt-in which they served process on an employee at
defendants' workplace-was invalid); Gauthier v.
Cleveland Cty. Bd. of Cty. Comm'r, No. CIV-12-58-D,
Order at 1-2 (W.D. Okla. Aug. 2, 2012) (granting an extension
of time to effect service and directing re-issuance of
process to the USMS after determining Plaintiff misnamed the
defendant); Myers v. Bird, No. CIV-08-636-D, Order
at 3-4 (W.D. Okla. Dec. 1, 2008) (quashing insufficient
service and directing the USMS to re-attempt service when the
original attempt was upon an employee at defendants'
IT IS ORDERED that:
(1) The prior summonses issued for Defendants Amin, Battles,
Hilligoes, and Mayhem are QUASHED.
(2) Plaintiff is granted one extension of time of
sixty days from the date of this Order to effect
service of process upon Defendants Amin, Battles, Hilligoes,
(3) The Court Clerk is directed to mail to Plaintiff the
necessary forms for requesting the issuance of summonses.
Plaintiff must complete these forms and return them to the
Court Clerk, along with sufficient copies of the Complaint to
effect service of process upon each Defendant, within
twenty-one days from the date of this Order.
See Order Requiring Service and Special Report (Doc.
No. 16) (detailing service instructions). -and-
(4) Upon receipt of properly completed forms, the Court Clerk
will issue summonses. Because Plaintiff has been granted
leave to proceed in forma pauperis, the
USMS shall be authorized to attempt service on
See Fed. R. Civ. P. 4(c)(3).
 The USMS also filed an
“unexecuted” return relating to a fifth
defendant: Defendant Miller. See Return (Doc. No.
29). Plaintiff's claims against Defendant Miller were
subsequently dismissed. See Order of Sept. 7, 2017
(Doc. No. 33).
 On December 13, 2017, Plaintiff filed
a separate motion for entry of default judgment (Doc. No.
43). That motion is DENIED as moot in light of the