Advisory to the Pro Se Litigant #10: Take Inititive;Court's Failure to Issue Summons No Excuse

A recent (December 15, 2010) decision by the United States Court of Appeals for the Eighth Circuit should serve as an important warning to pro se and represented plaintiffs: take initiative; if you need a document from the court, ask for it! In Kurka v. Iowa County, Kurka had filed suit but the district court did not issue Kurka a summons to serve on the defendant. The Federal Rule of Civil Procedure #4 requires a plaintiff to serve a complaint and summons within 120 days of the filing of the complaint. As no summons was issued, Kurka could not serve the complaint. However, Kurka took no steps within the 120 days to request or push the Court to issue the summons for service. Instead, Kurka contacted the Court to issue the summons after the expiration of the 120 day period, and filed a motion to enlarge the time within which Kurka be permitted to serve the complaint. The district court denied Kurka's motion, and the appellate court (Eighth Circuit) did not overturn. According to the Eighth Circuit, "the district court found the clerk's error was not good cause for Kurka's extended inaction." In other words, although Kurka did not have a summons to serve within the period the law provides for him to serve the summons, he also did not take proactive steps to remedy the situation, such as request the summons or serve the complaint without the summons form. It is only fair to recognize that in this particular decision, the district court was influenced by the plaintiff's eventual counsel's lack of credibility It is possible that a different plaintiff-plaintiff's counsel team might have fared better in this court. However, in so far as we read court decisions to influence our practice or actions, this case is an important warning to comply with deadlines before us to and to proactively seek documents from the court if we require them to take action, such as is the case when we need a summons from the court to proceed with the case. I am certain that if the plaintiff had made a record of efforts to request the summons from the court within the 120 days, or had made efforts to serve the complaint itself even though the summons was not available, the court might have ruled differently. However, here, the plaintiff took no proactive action within the 120 days. Hence, our lesson: take necessary steps to progress the case.