Magistrate Judge recommends dismissal of my case - 8

I sent this objection to the dismissal recommendation by the Magistrate Judge to the Pro SE Intake Unite (as required), the district judge, and that judge himself. Al three copies were delivered a day late from their expected two days priority mail delivery date and the main copy has not been entered yet.     

Magistrate Judge recommends dismissal of my case - 7

Here is what FRCP Rule 4(m) states:

"Time Limit for Service. If a defendant is not served within 120 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) or 4(j)(1)."

So in case I did not make that clear, I said that the application of Rule 4(m) precedes the application of Rule 41 (b) (as it relates to court orders) because , as shown above, the rule itself used filing the complaint ("after the complaint is filed") as its trigger point.    

 

Magistrate Judge recommends dismissal of my case - 6

I could have also expressed the last part there stating that Rule 41(b) as it relates to orders would be applicable with the condition that it should not contradict Rule 4(m).

However, this issue is not the main purpose of these posts.

 

Remember that letter

And the letter they sent from the Pro Se Office about which I wrote the post here actually clearly strengthens more that there is an intention to protect those in the position of decision making than it justifies their ignoring of the motion I sent. Again, I submitted a motion that should have been either granted or denied not a question looking for a legal advice.  

Magistrate Judge recommends dismissal of my case - 5

One could also say that since filing the complaint precedes the issuing of orders, the application of Rule 4(m) precedes that of  Rule 41(b) as it relates to orders. Also, since the issue of dismissal because of failing to serve the complaint does not stop from being under the applicability of Rule 4 (m), Rule 41(b) cant be applicable to lead to prejudiced dismissal here despite the order trick by both Florida and New York Courts.   

Magistrate Judge recommends dismissal of my case - 4

Furthermore, if we assume that there is a place to argue for a prejudiced dismissal according to FRCP Rule 4 (m) then that would be with the part that speaks about extensions in the rule. Otherwise failing to serve after the first 120 days directly states dismissal without prejudice if the court chooses not to extend the period. Here, the court ordered service within one period of 120 days. So even if we assume that period contains an extension, it is not the same as the extension of Rule 4 (m) which needs to be ordered after the elapse of the 120 days initial time and would also make the plaintiff knows clearly when the extension begins and ends. The extensions Rule 4 (m) spoke about are also not the ones that result from passively allowing things to extend beyond the original time period.  

Accordingly, if the 120 days represented the original period given to the plaintiff to serve his complaint according to Rule 4 (m) then the rule directly require unprejudiced dismissal. If, on the other hand it was intended to contain an extension then that is not the extension the rule spoke about.            

Magistrate Judge recommends dismissal of my case - 3

By the way, even if there was no problem with the summons the recommendation of the magistrate judge for prejudiced dismissal is  legally wrong because in that case FRCP Rule 4 (m) would apply. Like the case in Florida, his issuance of the order to serve the complaint within 120 days from the issuance of the summons, even if we consider the additional time as an extension instead of being  part of the original period because of unreasonable delay from the time the complaint was filed to when the summons were issued, is still within the applicability domain of  FRCP Rule 4 (m) and its unprejudiced dismissal.

Both courts issued extension orders then tried to make the fact that they were orders supersedes the more specific fact that they were related to time extensions which is what FRCP Rule 4 (m) is about and that is incorrect unless they meant that FRCP Rule 4 (m) allows prejudiced dismissal after extension which would also be wrong .  

Magistrate Judge recommends dismissal of my case - 2

Again, like the Florida case, this duck not only walked and talked like a duck but signed an affidavit and provided a picture ID that it is a duck.

Magistrate Judge recommends dismissal of my case

I found very recently that on 3/11/15 the magistrate judge of my case in New York has written this to the district judge recommending a dismissal with prejudice to my case for "failure to prosecute". He does not mention what I wrote to the court (doc 5 and doc 6) about the problem with the validity of the summons even though he speaks about looking into the records of the docket sheet.
As I mentioned in previous posts , I filed my complaint more than two weeks before its entry date on their docket sheet which happened on the same day I complained about that publicly here. Even their docket sheet shows that it was filed on 8/11/14 but not entered until 8/25/14 (doc 1). Who knows how long it could have taken had I stayed silent?

Then, despite that initial long holding time to the complaint, it took them more than ten additional days to issue the summons and only after the assigned judge referred the case to the magistrate judge for "General Pretrial" (doc 3). They then issued me those invalid , or at least very questionable, summons with a letter telling me that the magistrate judge may recommend the dismissal of my complaint if I do not serve the complaint or request an extension with the 120 day time frame (doc 4). They then ignored my request for new summons because of the invalidity of those they sent (doc 5 and doc 6) and even refused to enter it as a motion which is what it was filed as.

So even before the issuance of this dismissal recommendation it didn't need a genius to see what is going on. One can also see what clearly suggests an attempt to make those in higher positions participate in the plan without direct responsibility. That was started with the protection for the district judge through her referral to the magistrate judge for general pretrial (That reluctance to accept a responsibility here also fits with the relatively long time it took to assign a judge to the case even without counting the time between filing and entering the complaint). Despite that referral the magistrate judge or even the Clerk may not be seen in direct responsibility here because the game was being played through that vaguely identified unit I already talked here about doubting the purpose of its creation called the Pro SE Intake Unite . Then the second layer of that defense was shown with their entering as a letter the motion I sent regarding the invalidity of the summons (In addition an affidavit in support of the motion had to be sent and was received by them twice and I had to also complain publicly about the problem of not entering it before it was entered, as "Letter", in doc 6. Do you see how the general requirement on pro se litigants to contact only the Pro Se Intake Unite directly instead of the clerk was beneficial to the plan here?).

Even without recognizing that I don't see how an honest higher court would accept how the summons issue I raised was ignored without even denying the motion despite being on their docket sheet. That would still be the case even if I were to unknowingly miss the 14 days time frame to object to this recommendation and therefore to appeal and instead go directly to the higher court with a writ of mandamus.

Also, it is funny how the magistrate judge mentions dates showing more than a month of time difference between the filing of the complaint and the issuance of the summons or that the Clerk was directed by the court to issue the summons without explaining why that was needed here then pass on all that like there is nothing there.

Current Docket Sheet


[(Added 3/16/2015) I mistakenly referred to doc 6 and doc 8 which are the motion I sent regarding the summons and the affidavit I sent in support of that as doc 5 and doc 6 respectively]

"no change to the substance" -3

Although not far ago "certiorari" would have sounded to me like something inappropriate to look at, some may still wonder why I did not reach the conclusion that the difficult filing requirement could be a test earlier. That is because for me I could have complained a hundred times the way I did about these requirements and still not be even anywhere close to thinking about abandoning my claim because of it.

By the way, to an ordinary person filing for the first time, fulfilling the technical requirements of this court to that of others is like that of running a marathon to jogging.

"no change to the substance" -2

After reading this I even left almost all of the misspellings the way they are. I still don't understand the reason behind this requirement. On the other hand I think that I now can see the intended purpose behind the difficult filing requirements the court imposes. It seems that these requirements were intentionally made difficult as a test if the filer's believe in his case is at least at level to make him put the effort to pass this test and not just fishing. Otherwise, the job those making these requirements are holding  most probably put them in clearly inconvenient situations more than the like of reading a text from a letter size document instead of the size they require.

"no change to the substance"

I thought that the time extension from the supreme court allows me ,in addition to correcting the petition form, to also improve on the content of the petition but have just noticed this line in the Clerk's letter:


"When making the required corrections to a petition, no change to the substance of the petition may be made".


The rules of the court does not seem to get into that. It is confusing and unexpected because how can the change to a petition be measured starting from first accepted submission? 
The objective could be not to allow changes altering the petition to a fundamentally new one. In other words the purpose could be to prevent changes at a level similar to that which would not prevent a re-filing of the case because of the like of the res judicata rule if it were a case at a district court. 
If that interpretation is correct then the way they stated it was unnecessarily costly to me because it probably would force me to resend the original petition with all its substance shortcomings.   
What also supports this interpretation is that it doesn't seem very probable that the court would treat differently in that regard extension based on what is judged as a failure after a good faith effort without asking for extension for the original filing period, from extending the period after approving such request.