Kartiganer v. Juab County et al, No. 2:2010cv00842 - Document 44 (D. Utah 2011)
Court Description: MEMORANDUM DECISION AND ORDERdenying 39 Motion ; denying 42 Motion for Joinder. Signed by Judge Clark Waddoups on 11/7/11. (jmr)
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IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION ADAM KARTIGANER, MEMORANDUM DECISION AND ORDER Plaintiff, v. Case No. 2:10-CV-842 JUAB COUNTY, HOBY METZ, MAY AUTOMOTIVE TOWING, and BARRY C . CONOVER, Judge Clark Waddoups Defendants. Before the court are Defendants motions to reconsider this court s memorandum decision and order. (Dkt. No. 24.) Defendants argue that the court erred in its reasoning by failing to recognize that a plaintiff proceeding in forma pauperis must request service under Fed. R. Civ. P. 4(c)(3), pursuant to such cases as Rochon v. Dawson, 828 F.2d 1107 (5th Cir. 1987).1 To the contrary, the Tenth Circuit has stated definitively that an in forma pauperis plaintiff need not request such service. See Olsen v. Mapes, 333 F.3d 1199, 1204 n.4 (10th Cir. 2003) (stating, [t]he current version of Rule 4 does not indicate that a request is necessary. ). Indeed, the Tenth Circuit has explicitly rejected Rochon. Id. As such, Defendants motions to effectively disregard the Tenth Circuit s guidance are DENIED. (Dkt. No. 39, 42.) 1 The Defendants also rely on instructions from the Pro Se Litigant Guide for the District Court of Utah for the proposition that a pro se litigant must request the court to order service by the U.S. Marshal. The Defendants misread the instructions. These instructions are directed to all pro se litigants not just those proceedings in forma pauperis. Fed. R. Civ. P. 4(c)(3) makes it mandatory for the court to order service by the U.S. Marshal if a plaintiff is proceeding in forma pauperis, without any precondition that such a plaintiff make a request. Insofar as Defendants are concerned with the court s statement that they have submitted to the jurisdiction of the court, the court clarifies that Defendants were simply deemed to have been served. Fed. R. Civ. P. 12(b)(1) and 12(b)(2) challenges will be adjudicated following their prospective rules. DATED this 7th day of November, 2011. BY THE COURT: ____________________________ Clark Waddoups United States District Judge
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