Why is Brian L. Crow exK3VR avoiding service in the Civil Case filed against him by the US Department of Justice? - Nimbusters

Why is Brian L. Crow exK3VR avoiding service in the Civil Case filed against him by the US Department of Justice?

by An Old Friend, Friday, September 08, 2017, 18:02 (13 days ago)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, )
)
Plaintiff, ) CIVIL ACTION NO. 17-595
)
v. ) CHIEF MAGISTRATE JUDGE
) MAUREEN P. KELLY
BRIAN CROW, )
) (Electronic Filing)
Defendant. )


UNITED STATES’ MOTION FOR EXTENSION OF TIME NUNC PRO TUNC
TO EFFECTUATE SERVICE OF COMPLAINT AND SUMMONS

AND NOW, comes the United States of America, by its attorneys, Soo C. Song, Acting
United States Attorney for the Western District of Pennsylvania, and Paul E. Skirtich, Assistant United States Attorney for said District, and files the following Motion for Extension of Time to Effectuate Service of Complaint and Summons.

In support of this Motion, the United States avers as follows:
1. On May 8, 2017, Plaintiff filed the Complaint to recover a monetary forfeiture
penalty against the Defendant, Brian Crow.

2. The final day for the United States to serve the Defendant was, presumptively,
August 6, 2017. See Fed. R. Civ. P. 4(m).

3. The United States has exerted much effort in attempting to serve the Summons and Complaint but Defendant has and is avoiding service.

4. For example, on five (5) occasions, the U.S. Marshals Service visited Defendant’s
last known and current address, 12201 Longview Drive, North Huntingdon, Westmoreland County, Pennsylvania 15642, but was unsuccessful [June 2, July 26, August 14, 15 and 26, 2017].

5. Additionally, the U.S. Marshals Service has driven by the above address of Brian
Crow on numerous other occasions and observed the following: (a) the lawn had been mowed; and (b) lights were on during evening hours.

6. Moreover, on August 14, 2017, the U.S. Marshals Service visited the residence and
taped a “Notice to Call” to both the front and side doors of the above address. On the following morning, those notices were removed from the doors. [See Exhibit A, attached hereto.]

7. On Monday, August 25, 2017, personnel from the Federal Communications
Commission, Enforcement Bureau, U.S. Marshals Service deputies, and the undersigned exchanged information to aid the effort to serve Mr. Crow and/or any other resident of his address with the Complaint and Summons.

8. Federal Rule of Civil Procedure 4(m) provides the time limitations for service of a complaint filed in Federal Court.

(m) Time Limit for Service. If a defendant is not served within 90 days after the
complaint is filed, the court—on motion or on its own after notice to the plaintiff—
must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1).

The first determination by any district court is, whether or not, good cause exists for an extension of time. If ‘good cause’ has been shown, the district court must extend the time for service in accord with the express language of the Rule. Rule 4(m), however, does not define what constitutes ‘good cause’. “In determining whether good cause exists for extending the time for service, the courts weigh three factors: ‘(1) the reasonableness of plaintiff’s efforts to serve; (2) whether the defendant is prejudiced by the lack of timely service; and (3) whether the plaintiff
moved for an enlargement of time.’” Banks v. United States Marshals Service, 2016 WL 241675 at *2 (W.D. Pa. Jan. 5, 2016) (Magistrate Judge Lenihan) (quoting Holmes v. St. Vincent Health Ctr., 2007 WL 2531790, at *2 (W.D. Pa. Aug. 31, 2007) (quoting Steele v. HCI Direct, 2004 WL 1699611, *1 (E.D. Pa. July 29, 2004) (citing MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995))) (internal quotation marks omitted).

Here, the United States has taken several steps in its attempt to serve the Defendant. It timely provided all relevant papers and the last known address of the Defendant to the U.S. Marshals Service in this district. Further, the Marshals Service has made five (5) documented visits, at different hours and on different days, plus several additional drive-bys to that last known address which were all unsuccessful. Undeterred, the United States re-contacted the prosecuting
Federal agency for any updated information concerning the Defendant, relayed that information to the U.S. Marshals Service who committed to making additional attempts to serve the Defendant.

9. Defendant is well aware of the filed Complaint at the above civil action but is attempting to defeat service by not answering his door. Additionally, Defendant failed to respond to the request by U.S. Marshals Deputies to arrange a convenient date and time to execute service.

10. No prejudice has been suffered by Defendant since he has not yet been served and
thus, has not lost any rights provided to him by the Federal Rules of Civil Procedure. And, finally, the United States is moving nunc pro tunc to enlarge the time for service.

11. Based on the above, ‘good cause’ exists for an extension of time of sixty (60) days, from August 6, 2017, until October 5, 2017, to serve Mr. Crow.

__________

IT IS HEREBY ORDERED that said Motion is GRANTED.

IT IS FURTHER ORDERED that Plaintiff shall have until October 5, 2017, within which
to serve Defendant, Brian Crow, with a copy of the Complaint by United States for Recovery of Civil Monetary Forfeiture Penalty and Summons.

__________

Source: pacer.gov, Case#: 2-17-cv-00595-MPK, Western District of Pennsylvania


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