The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it defendants' Motion to Dismiss based on Rules 4(m) and 12(b)(5) of the Federal Rules of Civil Procedure (Dkt. 60). Defendants contend that the Court should dismiss this action because plaintiff failed to serve the defendants within 120 days of filing his complaint. The Court has determined oral argument would not significantly assist the decisional process and will decide the motion without a hearing. For the reasons expressed below, the Court will deny the motion.
Plaintiff Randall Tetzner, appearing pro se, alleges that in December
2004, he was harassed when he asked permission to bring a service
animal into the Kootenai County Administration building and assaulted
when he later returned to the building with the
service animal, his minor child, and a video camera.*fn1
In this action, he sues various government entities and
employees for deprivation of his constitutional and statutory rights,
and for assault and battery.
Tetzner filed his complaint in January 2007. The moving defendants were not served until over four years later, in March 2011. During those four-plus years, plaintiff filed four motions to proceed in forma pauperis (IFP). The Court denied all these motions and in January 2008, the Court dismissed the entire action because Tetzner failed to pay the filing fee. See Jan. 24, 2008 Order and Judgment, Dkts. 14, 15.
But in September 2009 -- nearly two years after dismissing the action -- the Court vacated the dismissal based on Tetzner's Rule 60(b) motion. See Sept. 29, 2009 Order, Dkt. 24 (adopting Sept. 2, 2009 report and recommendation). The Court once again refused Tetzner's request for IFP status, however.
Tetzner did not pay filing the fee after the Court reinstated his action and denied his second IFP motion. Instead, in October 2009, he filed a third IFP motion. Dkt. 25. Roughly nine months later, in June 2010, Magistrate Judge Boyle recommended denying the IFP motion without prejudice. Dkt. 26. Tetzner paid the filing fee within the next two weeks -- before this Court had a chance to consider Judge Boyle's recommendation.
Under these circumstances, it would have seemed that the third IFP motion was moot. Nonetheless, on June 23, 2010 -- the same day he paid his filing fee -- Tetzner filed a fourth IFP motion. See Dkt. 28. The fourth IFP motion may have been filed because Judge Boyle recommended denying the third motion without prejudice because, among other things, it failed to "provide the Court with sufficient information upon which to make an IFP eligibility determination." Dkt. 26, at 5.
In any event, in February 2011, Judge Boyle recommended denying the third and fourth IFP motions. See Dkt. 29. Shortly thereafter, on March 16, 2011, this Court adopted Judge Boyle's recommendations relating to the third and fourth IFP motions. See Mar. 16, 2011 Order, Dkt. 59. The Court's order indicated that Tetzner would have 30 days (or until April 16, 2011) to serve the complaint. By that time, however, Tetzner had already served the moving defendants. (Tetzner served the moving defendants on March 4 and 7, 2011.) The defendants nonetheless assert that Tetzner failed to timely serve his complaint under Federal Rule of Civil Procedure 4(m).
As a threshold matter, the Court disagrees with defendants' assertion that Tetzner's 120-day period to serve his complaint started ticking back in January 2007, when he lodged his complaint with the Court. See generally Fed. R. Civ. P. 4(m) (establishing 120-period in which to serve complaint).
In most cases, the filing of the complaint "commences" a civil action and starts the 120-day clock for serving defendants with a summons and the complaint. See Fed. R. Civ. P. 3 ("A civil action is commenced by filing a complaint with the court."); Fed. R. Civ. P. 4(m). But in cases where the plaintiff asks to proceed IFP under 28 U.S.C. § 1915(a), the court authorizes the "commencement" of the suit. See 28 U.S.C. § 1915(a) (court "may authorize the commencement. . . of any suit . . . without prepayment of fees . . . .").
If there is judicial delay in processing the IFP motion, plaintiffs may face either a statute-of-limitations problem, or a service-timing problem depending on whether the complaint is deemed to have been filed at the time the IFP motion is filed, versus the date on which the court rules on the IFP application. The Ninth Circuit has not addressed this issue, but the Seventh Circuit held that for statute-of-limitations purposes, an action is "commenced" when the plaintiff initially lodges the complaint, but Rule 4(m)'s 120-day clock does not begin "until the clerk stamps the complaint 'filed' following an order granting IFP status or belated payment of the docket fee." Williams-Guice v. Bd. of Educ., 45 F.3d 161, 162 (7th Cir. 1995) (Easterbrook, J.) (citing Gilardi v. Schroeder, 833 F.2d 1226 (7th ...