United States District Court, S.D. Ohio, Western Division, Dayton
MEMORANDUM OF OPINION
C. NUGENT, UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon the Report and
Recommendation of Magistrate Judge Michael R. Merz. Although
the Court notified Plaintiff nine separate times that he
failed to perfect service on the Defendants (ECF Nos. 12, 19,
23, 25, 27, 29, 31, 33, and 38), Plaintiff failed to correct
the deficiencies. The Report and Recommendation (ECF No. 40),
submitted on July 16, 2019, is hereby ADOPTED by this Court.
As such, Plaintiffs Complaint (ECF No.1) is DISMISSED.
and Factual Background
case was filed on April 16, 2019 against President Donald
Trump and eight Judges of the United States District Court
for the Southern District of Ohio. After Plaintiff submitted
three returned summonses as proof of service, United States
District Court Magistrate Judge Michael R. Merz issued his
first Order expressing concern that the summonses did not
evidence proper service on the Defendants. Specifically,
Magistrate Judge Merz listed three deficiencies:
1. The Plaintiff listed himself as the person making service.
Rule 4 requires service to be made by someone who is not a
party to the case.
2. The Federal Civil Procedure Rules do not provide for
service by certified mail. They do, however, incorporate the
rules from the forum State, in this case Ohio. Ohio Civil
Procedure Rule 4.2 provides for service by certified mail but
only if it is done by the Clerk of Court. The Clerk's
office did not send the certified mail.
3. Under the Ohio Rules, if certified mail is refused, the
Plaintiff may request that the Clerk's Office serve the
Complaint by regular mail and must prepare for the
Clerk's signature a certificate of mailing. That was not
done in this case.
(ECF No. 19). He ordered Plaintiff to file a proper proof of
service that addresses these concerns.
filed other documents with the Court but did not comply with
the Court's Order to file proof of service. On May 21,
2019, the Court issued a Renewed Order to File Proof of
Service. (ECF No. 23). Plaintiff responded to this Order by
stating, "there is absolutely no reasonable basis for
any doubt regarding service being perfected in accordance
with Rule 4, except for the magistrate wanting to fabricate a
basis for a fraudulent dismissal." (ECF No. 24). He
asserted that he had attached a copy of the signed green
cards from the United States Postal Service which he
previously filed with the Clerk's Office and that these
cards were proof of service. (ECF No. 24).
Court addressed Plaintiffs response, rejecting his
explanation and stated:
1. Plaintiff did not attach copies of the green cards to his
Response as he indicated.
2. Rule 4(1)(1) provides that proof of service must be made
by the server's affidavit No. affidavit was provided.
Returned summonses suggest Plaintiff performed service. A
party to an action cannot personally carry out service.
3. The green cards, alone, do not prove service was done
properly. In this case, service by certified mail will only
be effective if it is done by the Clerk of Court. The Deputy
Court Clerks confirm that they have not been asked to perform
service, they have not been provided documents or envelopes
for service and have not attempted service of process by
certified mail in this case.
(ECF No. 25). The Court notified Plaintiff that the former
Order remained in effect. Plaintiff responded to that Order
by stating that he was unable to prove he provided envelopes
to the Clerk's Office because the envelopes were mailed,
and the Magistrate Judge's suspicion was immaterial as
the green cards were proof of service. (ECF No. 26).
Magistrate Judge issued a Decision in reply to Plaintiffs