United States District Court, W.D. New York
June 9, 2005.
JONATHAN ODOM, Plaintiff,
BRIAN BAKER, STEPHEN M. BERNARDI, VICTOR T. HERBERT, EDWARD HAMILL, B. BARKER, B. BERKER and E. STOERR, Defendants.
The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge
On May 30, 2003, the parties consented to proceed before the
undersigned. The matter is presently before the court on
Plaintiff's motion, filed April 13, 2005 for an order directing
Defendants to replace Plaintiff's legal papers (Doc. No. 23).
This § 1983 case was initiated by filing of a complaint on
October 3, 2002 alleging First, Fourth, Fifth, Eighth and
Fourteenth Amendment violations based on unlawful search of his cell and the seizure and destruction of
Plaintiff's legal files.
On May 20, 2003, Defendants Baker, Bernardi, Herbert, Hamill
and Stoerr, moved to dismiss for failure to effect personal
service. By Decision and Order, filed May 29, 2003 (Doc. No. 16)
the court found that Plaintiff's attempted filing of a notice of
default was properly rejected by the Clerk of Court for lack of
the prerequisite of personal service on Defendants.*fn1 The
court also granted Plaintiff additional time to June 20, 2003, to
oppose Defendants' motion.
By Decision and Order dated March 31, 2005 (Doc. No. 22),
Plaintiff was granted 45 days from such date to effect service
upon Defendants pursuant to Fed.R.Civ.P. 4(e) and 4(m), and New
York Civil Practice Law and Rules § 308(2).
By Declaration of Michael A. Siragusa, Assistant Attorney
General, dated May 12, 2005, Defendants oppose Plaintiff's
instant motion on the ground that, to date, Plaintiff has failed
to serve any Defendant named in the Complaint.
Oral argument was deemed unnecessary. Based on the following,
Plaintiff's motion is DENIED.
It is fundamental that until the named defendants are
personally served, the court lacks personal jurisdiction over
defendants sufficient to enter any order or judgment against such
person. Murphy Bros., Inc. v. Michestti Pipe Stringing, Inc.,
526 U.S. 344, 350 (1999). Here, the record does not show any
returns of service upon any Defendant since the court's Decision and Order dated May 31, 2005
directing service be completed not later than 45 days thereafter.
Accordingly, quite apart from the question of whether the court
may direct any Defendant to return or copy Plaintiff's legal
papers, whether there is any factual basis to find Defendants are
in possession of such papers, or whether Defendants can be held
responsible for the withholding of Plaintiff's papers as
Plaintiff asserts, Plaintiff's request puts the "cart before the
Accordingly, there is no basis upon which the relief requested
by Plaintiff on this motion may be granted.
Based on the foregoing, Plaintiff's motion is DENIED.