Lori Chavez-Deremer v. Clockwise Staffing Agency

Background

The plaintiff, Lori Chavez-Deremer in her capacity as Secretary of Labor for the U.S. Department of Labor, filed suit against Clockwise Staffing Agency, LLC and Dalmas Mokaya for alleged violations of Section 217 of the Fair Labor Standards Act of 1938 (FLSA), which authorizes the Secretary to bring civil enforcement actions in federal court.

After filing, the Secretary attempted to obtain waivers of service — a procedure under Federal Rule of Civil Procedure 4(d) that asks defendants to voluntarily accept service by mail rather than requiring formal in-person delivery. No response was received within 30 days. She then sent waivers to the defendants' prior attorney, Steven E. Antolak, who informed her he no longer represented the defendants. Counsel for the Secretary attempted to reach the defendants by phone and email to determine whether they had new counsel, but received no response.

The Secretary then filed a motion asking the court to order the U.S. Marshals Service to effect service of the summons, complaint, and notice of appearance on her behalf, arguing this was necessary to ensure the action could proceed.

Legal Framework

Federal Rule of Civil Procedure 4(c)(3) provides that, at a plaintiff's request, a court MAY order service to be made by a U.S. Marshal, deputy marshal, or a specially appointed person. (The Rule also mandates Marshals service when a plaintiff is proceeding without paying filing fees — called in forma pauperis — or is a seaman, neither of which applied here.)

The District of Minnesota's Local Rule 4.1 supplements this by specifying that the U.S. Marshals Service is not required to serve civil process for litigants unless required by the Federal Rules, federal law, or ordered by the court for good cause.

Court's Analysis

The court surveyed the legislative history of Rule 4(c)(3), noting that prior to 1983, the Marshals served process in all private civil federal actions. Congress changed this to relieve the Marshals Service of routine civil process service. The advisory committee notes to both the federal rule and the local rule make clear that Marshals service is intended as a last resort — specifically for situations where a law enforcement presence appears necessary or advisable to keep the peace.

The court found that nothing in the Secretary's motion suggested a law enforcement presence was needed. The court further noted two significant deficiencies in the Secretary's request:

1. The Secretary had only attempted to obtain voluntary waivers of service — she had not actually attempted to formally serve the defendants through any of the methods otherwise available under Rule 4. 2. The Secretary offered no explanation for why the Marshals Service would have more success locating and serving the defendants than she had.

The court cited a persuasive decision from another district, Su v. El Toro Loco Legends, LLC, No. 23-cv-2115, 2023 WL 12174833 (D. Kan. Apr. 25, 2023), in which another court denied the Secretary of Labor's motion for Marshals service under nearly identical circumstances — where the Secretary had only attempted waivers and had not attempted formal service.

The court rejected the Secretary's apparent belief that difficulties in locating and serving elusive defendants, standing alone, constitute good cause. It held that the Secretary, like any other civil litigant, bears the responsibility of finding the parties she intends to sue and providing them with proper notice of the action.

Disposition

The court denied the Secretary's Motion for an Order Requiring the United States Marshals Service to Effect Service of Summons, Complaint, and Notice of Appearance Upon Defendants (ECF No. 5).