McFadden v. City of New York

Background

The U.S. Marshals Service filed a report stating that it had not served Detective Peter Lumia because he was not located at the 25th Precinct. The plaintiff later notified the court that the Marshals Service had also been unable to serve Dr. Erick Eiting. The plaintiff requested that the action be delayed until service was completed.

Rulings and Service Instructions

The court denied the request for a stay. A stay would have paused the action. The court nevertheless stated that there were no further deadlines to meet until the defendants were served or the court entered another order setting deadlines.

To permit service through the U.S. Marshals Service, the court instructed the clerk to complete service forms for Eiting and Lumia using the addresses listed in the order. The clerk was also instructed to issue summonses and provide the Marshals Service with the paperwork needed to serve those defendants.

Warning About Further Action

The court advised the plaintiff, who was proceeding without a lawyer, that he was responsible for checking with the Marshals Service about whether service had occurred and, if necessary, requesting an extension of time. The court stated that under Rules 4(m) and 41(b) of the Federal Rules of Civil Procedure, it may dismiss the action for failure to prosecute if the plaintiff had not completed service or requested an extension within 90 days after the summonses were issued. The order addressed service and case deadlines; it did not decide the underlying claims.