United States District Court, D. Delaware
ORDERED, as follows:
Peter Joshua Labreck ("Plaintiff'), an inmate housed
at the St. Clair County Jail in Port Huron, Michigan, filed
this action on January 5, 2017. (D.I. 3). He proceeds pro
se and has been granted leave to proceed in forma
to Fed.R.Civ.P. 4(b), (c)(1), (c)(3), and (h), Plaintiff
shall request the Clerk of Court to prepare a summons for
Defendant Experian who failed to return the "Waiver of
Service of Summons." (See D.I. 25). Plaintiff
shall also complete and return to the Clerk of Court original
"U.S. Marshal-285" form and a copy of the complaint
(D.I. 3), amended complaint (D.I. 9), and addendum to amended
complaint (D.I. 11) for personal service upon Experian.
Failure to request issuance of summons and to provide
a "U.S. Marshal 285" form containing a complete
address for defendant and a copy of the complaint, amended
complaint, and addendum to amended complaint within thirty
(30) days from the date of this order may result in the
dismissal of Defendant pursuant to Federal Rule of Civil
receipt of the request for issuance of summons, the USM-285
form and a copy of the complaint, amended complaint, and
addendum to amended complaint required by paragraph 2 above,
the Clerk of Court shall issue the summons and transmit the
summons, USM-285 form, and copy of the complaint (D.I. 3),
amended complaint (D.I. 9), and addendum to amended complaint
(D.I. 11), the May 5, 2017 service order (D.I. 12), the
filing fee order(s), and a copy of this Order to the USMS for
immediate service pursuant to Fed.R.Civ.P. 4(c). The USMS
shall personally serve process and a copy of this order upon
Experian pursuant to Rule 4 of the Federal Rules of Civil
Procedure and 28 U.S.C. § 566(c).
Within ten days after personal service is effected, the USMS
shall file the return of service for defendant, along with
evidence of any attempts to secure a waiver of service of
process and of the costs subsequently incurred in effecting
service on said defendant. Said costs shall be enumerated on
the USM-285 form. Costs of service will be taxed against the
personally served defendant in accordance with the provisions
of Federal Rule of Civil Procedure 4(d)(2) unless the
defendant shows good cause for such failure.
Motion to Amend. On September 14, 2017,
Plaintiff filed a "second amended complaint"
construed by the Court as a motion for leave to amend. (D.I.
30). In the motion, Plaintiff incorporates by reference all
the allegations in the complaint, amended complaint, and
addendum and adds a new defendant. Plaintiff filed the motion
without complying with the Local Rules of this Court.
Local Rule 15.1 provides that a party who moves to amend a
pleading shall attach to the motion: (1) the proposed
pleading as amended, complete with a handwritten or
electronic signature; and (2) a form of the amended pleading
which indicates in what respect it differs from the pleading
which it amends, by bracketing or striking through materials
to be deleted and underlining materials to be added.
Plaintiff did not do this. Therefore, the motion to amend is
DENIED. (D.I. 30).
Request for Subpoenas.
September 5, 2017, Plaintiff asked the Clerk of Court to
issue twelve subpoenas to produce documents pursuant to
Fed.R.Civ.P. 45. (D.I. 27). A federal court has the inherent
power to protect any one from oppressive use of process, even
if no oppression is actually intended. Badman v.
Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991) (citation
omitted). Plaintiff does not indicate to whom the subpoenas
will be directed, what documents he seeks, how the documents
he seeks are relevant, if he seeks documents from a named
defendant, or whether he has the ability to pay for any costs
associated with issuance of the subpoenas, such as photocopy
fees, witness fees, or mileage. Therefore, the request is
DENIED. (D.I. 27).
It appears that Plaintiffs
proposed amendment contains claims that are preempted by the
Fair Credit Reporting Act. See 15 U.S.C. §
1681t(b)(1)(F); see e.g., Calloway v. Green Tree
Servicing, LLC,607 F.Supp.2d 669, 675 (D. Del. 2009).
Thus, amendment would be futile. See In re Burlington