Breaux v. Ti-Zack Concrete Inc

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                

Terry K. Breaux,                    Case No. 24-CV-3979 (JRT/DJF)       

              Plaintiff,                                                

v.                                          ORDER                       

Ti-Zack Concrete Inc.,                                                  

              Defendant.                                                


   This matter is before the Court on Plaintiff Terry K. Breaux’s Amended Complaint (ECF 
No. 3) and Application to Proceed in District Court without Prepaying Fees or Costs (“IFP 
Application”) (ECF No. 2).  As Mr. Breaux is a pro se litigant, the Court construes his filings 
liberally.  See Erickson v. Pardus, 

 (2007).  Accordingly, the Court construes his 
Amended Complaint as a Motion to Amend the Complaint.  Rule 15(a)(1) of the Federal Rules of 
Civil Procedure allows a party to amend his complaint once (and only once) as a matter of course.  
The Court therefore grants the Motion.  The Amended Complaint is now the operative pleading in 
this matter.                                                              

   Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
HEREBY ORDERED THAT:                                                      
   1.   Plaintiff Terry K. Breaux’s Motion to Amend the Complaint (ECF No. 3) is 
        GRANTED.                                                        
   2.    The Court directs the Clerk of Court to refile Plaintiff’s Motion to Amend the 
        Complaint (ECF No. 3) as his Amended Complaint.                 
   2.   Mr. Breaux’s application to proceed in forma pauperis (ECF No. 2) is GRANTED. 
   3.   Mr. Breaux must submit a properly completed Marshal Service Form (Form USM-
        285) for the defendant.  If Mr. Breaux does not complete and return the Marshal 
        Service Form within 30 days of this order, it will be recommended that this matter 

        be dismissed without prejudice for failure to prosecute.  A Marshal Service Forms 
        will be provided to Mr. Breaux by the Court.                    
   4.   After the return of the completed Marshal Service Forms, the Clerk of Court is 
        directed to seek waiver of service from defendant Ti-Zack Concrete Inc., consistent 
        with Rule 4(d) of the Federal Rules of Civil Procedure.         
   5.   If the defendant fails without good cause to sign and return a waiver within 30 days 
        of the date that the waiver is mailed, the Court will impose upon that defendant the 
        expenses later incurred in effecting service of process.  Absent a showing of good 
        cause, reimbursement of the costs of service is mandatory and will be imposed in 
        all cases in which a defendant does not sign and return a waiver of service form.  

        See Fed. R. Civ. P. 4(d)(2).                                    
IT IS SO ORDERED.                                                         
                                s/ Dulce J. Foster                      
Dated: October 31, 2024                                                 
                                Dulce J. Foster                         

                                United States Magistrate Judge          

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                

Terry K. Breaux,                    Case No. 24-CV-3979 (JRT/DJF)       

              Plaintiff,                                                

v.                                          ORDER                       

Ti-Zack Concrete Inc.,                                                  

              Defendant.                                                


   This matter is before the Court on Plaintiff Terry K. Breaux’s Amended Complaint (ECF 
No. 3) and Application to Proceed in District Court without Prepaying Fees or Costs (“IFP 
Application”) (ECF No. 2).  As Mr. Breaux is a pro se litigant, the Court construes his filings 
liberally.  See Erickson v. Pardus, 

 (2007).  Accordingly, the Court construes his 
Amended Complaint as a Motion to Amend the Complaint.  Rule 15(a)(1) of the Federal Rules of 
Civil Procedure allows a party to amend his complaint once (and only once) as a matter of course.  
The Court therefore grants the Motion.  The Amended Complaint is now the operative pleading in 
this matter.                                                              

   Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
HEREBY ORDERED THAT:                                                      
   1.   Plaintiff Terry K. Breaux’s Motion to Amend the Complaint (ECF No. 3) is 
        GRANTED.                                                        
   2.    The Court directs the Clerk of Court to refile Plaintiff’s Motion to Amend the 
        Complaint (ECF No. 3) as his Amended Complaint.                 
   2.   Mr. Breaux’s application to proceed in forma pauperis (ECF No. 2) is GRANTED. 
   3.   Mr. Breaux must submit a properly completed Marshal Service Form (Form USM-
        285) for the defendant.  If Mr. Breaux does not complete and return the Marshal 
        Service Form within 30 days of this order, it will be recommended that this matter 

        be dismissed without prejudice for failure to prosecute.  A Marshal Service Forms 
        will be provided to Mr. Breaux by the Court.                    
   4.   After the return of the completed Marshal Service Forms, the Clerk of Court is 
        directed to seek waiver of service from defendant Ti-Zack Concrete Inc., consistent 
        with Rule 4(d) of the Federal Rules of Civil Procedure.         
   5.   If the defendant fails without good cause to sign and return a waiver within 30 days 
        of the date that the waiver is mailed, the Court will impose upon that defendant the 
        expenses later incurred in effecting service of process.  Absent a showing of good 
        cause, reimbursement of the costs of service is mandatory and will be imposed in 
        all cases in which a defendant does not sign and return a waiver of service form.  

        See Fed. R. Civ. P. 4(d)(2).                                    
IT IS SO ORDERED.                                                         
                                s/ Dulce J. Foster                      
Dated: October 31, 2024                                                 
                                Dulce J. Foster                         

                                United States Magistrate Judge