Stebbins v. Polano

Background

David A. Stebbins filed an amended complaint alleging copyright infringement claims against Karl Polano and other defendants. Because Stebbins had been allowed to proceed without paying the filing fee, the U.S. Marshal was initially ordered to serve the defendants. The Marshal returned Polano’s summons unexecuted because Marshals are not authorized to serve American legal papers in foreign countries.

Stebbins then asked the court to arrange service on Polano under the Hague Convention, or alternatively to allow him to arrange that service. He also asked the court to have its personnel cooperate in a way that was not prohibitively expensive and to relieve him of service requirements, including a requirement that a court official or attorney sign the papers. Stebbins represented that Polano resided in Switzerland and that he was prepared to pay a private process server at least $795 to serve Polano there.

Service ruling

Federal Rule of Civil Procedure 4(f) governs service on individuals in foreign countries. It permits service through internationally agreed methods, including methods authorized by the Hague Convention, and permits other methods that are not prohibited by international agreement when ordered by the court.

The court held that Stebbins remained responsible for serving Polano. It denied any request for the U.S. Marshal to serve process abroad because the Marshal could not do so. It also denied Stebbins’s requests that the court conduct service for him or remove service requirements, including the signature requirement. The court concluded that a docket entry concerning Stebbins’s fee-waiver status did not prohibit him from arranging service himself. It therefore granted his request to conduct service himself, provided that he complied with the Federal Rules of Civil Procedure and other applicable law.

The court’s conclusion stated that Stebbins’s motion for the court to conduct Hague service was denied and that Stebbins was responsible for serving Polano. Thus, the motion was granted in part and denied in part: Stebbins could arrange lawful service himself, but the court and U.S. Marshal would not conduct it or relax the service requirements.

Fee-waiver status and order to show cause

The court also addressed Stebbins’s status as a litigant allowed to proceed without paying the filing fee. It explained that this status may be reviewed at any time and must be revoked if the allegation of poverty is untrue. Stebbins’s stated willingness to pay at least $795 for private service raised a question about whether he had sufficient funds to pay the filing fee.

The court ordered Stebbins, within fourteen days, to show cause—meaning to explain—why his fee-waiver status should not be revoked and the action dismissed without prejudice to refiling after prepayment of the filing fee. The court also gave him the alternatives of paying the filing fee or filing a notice of voluntary dismissal. The order did not itself state that the action was dismissed; it ordered Stebbins to respond first. Judge White also noted that court staff could not provide legal advice and referred Stebbins to the court’s handbook and Legal Help Center for basic assistance.