Peche v. Minnesota Department of Transportation

U.S. District Court, District of Minnesota March 15, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Rudy A. Peche, III, Case No. 23-cv-2974 (JMB/DJF)

Plaintiff,

v. ORDER

Minnesota Department of Transportation and
AFSCME,

Defendants.

IT IS HEREBY ORDERED THAT:
1. Plaintiff Rudy A. Peche, III’s application to proceed in forma pauperis (ECF
No. [2]) is GRANTED.
2. Mr. Peche must submit a properly completed Marshal Service Form (Form
USM-285) for each defendant. If Mr. Peche does not complete and return the
Marshal Service Forms by April 15, 2024, the Court will recommend that this
matter be dismissed without prejudice for failure to prosecute. The Court will
provide Marshal Service Forms to Mr. Peche.
3. After Mr. Peche returns the completed Marshal Service Forms, the Court directs
the Clerk of Court to seek waiver of service from defendant AFSCME, consistent
with Rule 4(d) of the Federal Rules of Civil Procedure.
4. If a 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).
5. The Court directs the U.S. Marshals Service to effect service of process on
defendant Minnesota Department of Transportation consistent with Rule 4(j) of the

Federal Rules of Civil Procedure.
6. Mr. Peche’s February 7, 2024 motion to amend (ECF No. [10]) is DENIED AS
MOOT in light of the amended complaint Mr. Peche submitted on March 13, 2024
(ECF No. [15]). That amended complaint (ECF No. [15]) is now the operative
pleading in this matter. See Fed. R. Civ. P. 15(a)(1).
7. Mr. Peche’s motion to deny all of defendants’ motions (ECF No. [9] is DENIED
AS MOOT. Defendants have not filed any motions (or participated in any way) in
this lawsuit to date.
8. Mr. Peche’s self-styled motion filed on January 2, 2024 (ECF No. [7]) is DENIED.
The relief Mr. Peche requests is outside the Court’s authority Court to grant.

9. Mr. Peche’s motion to appoint counsel (ECF No. [14]) is DENIED WITHOUT
PREJUDICE. It is not yet clear from the amended complaint and accompanying
exhibits that Mr. Peche has filed suit on his claims within 90 days of issuance of a
right-to-sue letter by the Equal Employment Opportunity Commission. Although
Mr. Peche’s failure to submit a right-to-sue letter and thereby establish the
timeliness of his claims is not a basis for sua sponte dismissal of the complaint, see

28 U.S.C. § 1915

(e)(2)(B), the potential that this matter may be dismissed in the 
  very early stages on procedural grounds is reason not to commit judicial resources 
  to appointment of counsel at this time, see Crozier for A.C. v. Westside Community 
     School District,

973 F.3d 882, 890

 (8th Cir. 2020).  In any event, Mr. Peche has 
     stated the basis for his claims with reasonable clarity, his amended complaint has 
     survived preservice review under § 1915(e)(2)(B), and, as a practical matter, there 
     is nothing for appointed counsel to assist with at this time as Mr. Peche and the 

     Court await the defendants’ responses.  The Court will reconsider the request for 
     appointment of counsel should circumstances dictate.            
Dated: March 15, 2024           s/ Dulce J. Foster                      
                             DULCE J. FOSTER                         
                             United States Magistrate Judge