Banks v. McGynn, Hays & Co., Inc.
- Robert Lehrburger
- 1:21-cv-00679
- U.S. District Court · Southern District of New York
- 2
In Banks v. McGlynn, Judge Lehrburger ordered steps for serving defendants after Edward Banks was allowed to proceed without paying filing fees.
Edward Banks must complete or arrange service on the defendants within the stated deadlines. The defendants are affected because the order establishes how they may be formally served.
What happened
In Banks v. McGlynn, Edward Banks had permission to proceed without paying filing fees, so the court said he could rely on the court and the U.S. Marshals Service to serve the defendants.
The Clerk of Court must send Banks a service form. Within 30 days, he must return a completed form for the defendants or tell the court in writing that he wants a summons issued directly to him. After a summons is issued, service must be completed within 120 days, unless Banks requests more time. The court warned that it may dismiss the case if he does not meet these deadlines or update the court about an address change.
Judge Robert W. Lehrburger issued the order on March 17, 2021. The order addressed how service must be carried out and did not decide the underlying claims.
The detailed version
- Banks v. McGynn, Hays & Co., Inc. · No. 1:21-cv-00679
- Robert Lehrburger
- Mar. 17, 2021
Background
Edward Banks had been granted permission to proceed without paying filing fees. Because of that status, the court explained that Banks could rely on the court and the U.S. Marshals Service to serve the defendants.
Order
The Clerk of Court was directed to send Banks one U.S. Marshals Service Process Receipt and Return form, known as a USM-285 form. Within 30 days after the order, Banks must complete and return the form for the defendants. Alternatively, he may notify the court in writing within that period that he does not want to use the Marshals Service and request that a summons be issued directly to him.
If Banks does neither within 30 days, the court stated that it may dismiss the action for failure to prosecute, meaning failure to move the case forward. If Banks returns the completed form, the Clerk must issue a summons and provide the Marshals Service with the paperwork needed to serve the defendants.
Regardless of the service method, Banks must complete service within 120 days after the summons is issued. The order makes Banks responsible for checking with the Marshals Service about whether service occurred and, if necessary, requesting an extension. The court also stated that Banks must promptly notify it in writing of any address change and that the action may be dismissed if he fails to do so. The Clerk was directed to mail Banks a copy of the order and record that mailing on the docket.
Disposition and effect
This is an order setting the process and deadlines for serving the defendants. It does not dismiss the action and does not decide the merits of Banks's claims. Judge Robert W. Lehrburger signed the order as a United States Magistrate Judge.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.