Interlocutory Appeal Certification by Pro Se Plaintiff to Correct Manifest Errors


            Pro se, non-prisoner Joanna Burke (“Plaintiff”) submits this Brief in Support of her Motion to Certify Dispositive Issue for Interlocutory Appeal and Stay Proceedings Pending Appeal for the following reasons:


On July 17, 2023, Magistrate Judge Dulce Foster issued two orders (Doc. 9), a written order to show cause, and a text order pertaining to process of service.

It is the text order which is subject to Plaintiff’s certified appeal request, as per this motion. The text order stated:

(Text-Only) Order: In her [8] Motion for Advance Approval of Process of Service Costs and Extension of Time to Serve Defendant, Plaintiff seeks an order for prepayment of service costs, and also seeks a 90-day extension of the time to serve Defendants. The Court DENIES the Motion IN PART. Fed. R. Civ. P. 4(d)(2) provides for the imposition of expenses “later incurred in making service” when a defendant refuses to waive service, but it does not allow for prepayment of service costs as Plaintiff requests. Plaintiff’s request for prepayment of service costs is DENIED accordingly. Since the Defendants have refused to waive service, Plaintiff must serve the Complaint. She may have until July 31, 2023. to properly serve the Summonses and Complaint. Ordered by Magistrate Judge Dulce J. Foster on 7/17/2023. (JC)

            First, the order misinterprets the Plaintiff’s clear and obvious textual interpretation of her motion. Nowhere in the motion does Plaintiff “seek[s] an order for prepayment of service costs”; “prepayment of service costs as Plaintiff requests”, or; “Plaintiff’s request for prepayment of service costs” as repeated three times in the short text order.

            On the contrary, it is quite clear and obvious that Plaintiff seeks advance court approval to “recover service costs” along with additional time to serve the Defendants who Plaintiff suggests should have waived service, as stated in the motion. This includes 5th Circuit Clerk Christina Gardner, who is being sued in both her governmental (employment) capacity (Doc. 1, p. 99, A. Corporate Capacity Claim), and her individual (personal) capacity (Doc. 1, p. 101, B. Individual Capacity Claim) which can be waived:


Plaintiff Joanna Burke is 84 years old widow, now on a reduced fixed income  as a result of the tragic loss of her husband of over 63 years. She respectfully requests an Order be issued which approves recovery of the process of services costs which will be incurred to serve the Defendants in this civil action. (emphasis added).

            Second, the court states in the order:

“Since the Defendants have refused to waive service, Plaintiff must serve the Complaint. She may have until July 31, 2023. to properly serve the Summonses and Complaint.”

            Federal Rules of Civil Procedure allow for 120 days for process of service.  See; Dennis v. Nazareth Sch., Case # 12-CV-6394-FPG, at *2 (W.D.N.Y. Aug. 7, 2015):

“Federal Rule of Civil Procedure 4(m) provides that “[i]f 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.””

However, this court’s order seeks to sua sponte reduce the time allowed by around 3 weeks despite the financial hardship and argument expounded in Plaintiff’s meritorious motion with authorities. See; Stout v. Wells Fargo Bank, N.A. (5:22-cv-00441, District Court, W.D. Texas); Wescott Agri–Prods., Inc. v. Sterling State Bank, Inc., 682 F.3d 1091, 1095 (8th Cir. 2012); Smith v. Bradley Pizza, Inc., 314 F. Supp. 3d 1017 (D. Minn. 2018).


The necessary elements to certify this issue for interlocutory appeal are satisfied under 28 U.S.C. § 1292. Interlocutory appeals should be granted where such an appeal (1) “involves a controlling question of law,” (2) “as to which there is a substantial ground for difference of opinion,” and (3) “that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” GreenState Credit Union v. Hy-Vee, Inc., 500 F. Supp. 3d 799, 807 (D. Minn. 2020).

Process of Service Is A Controlling Question Of Law

Waiver, Costs and Time to Serve

See; Marcello v. Maine, 238 F.R.D. 113, 115 (D. Me. 2006):

“A. Costs of Service Rule 4(d)(2) provides: If a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown. Fed. R. Civ. P. 4(d)(2). Absent ” good cause,” the imposition of costs is mandatory. Id. (” [T]he court shall impose the costs ….” ) (emphasis supplied).”

            Here, Plaintiff requested waiver and approval from the court as to future recovery of costs along with an additional 90 days to serve the Defendants due to Plaintiff’s reduced fixed income as a result of the unnecessary and untimely death of her husband of 64 years in September of 2022, “if necessary”. That stated, Plaintiff avers it should not be necessary to serve Defendants, as explained in Joanna Burke’s original motion. In short, service should be waived by officers of the court, who are supposedly not “above the law” and are held accountable to  high professional and ethical standards.  See; Wescott Agri–Prods., Inc. v. Sterling State Bank, Inc., 682 F.3d 1091, 1095 (8th Cir. 2012). Plaintiff maintains these standards should have been applied in this proceeding. The court could have relied upon its own inherent authority to ensure these standards were applied. See; Wescott Agri–Prods., Inc. v. Sterling State Bank, Inc., 682 F.3d 1091, 1095-96 (8th Cir. 2012). Instead, Magistrate Judge Foster chose to defend conduct unbecoming of officers of the court.

This court’s order materially reduced Plaintiff’s time to formally serve Defendants by violating Federal Rules of Civil Procedure.  This was Joanna Burke’s first motion for any type of relief, and which was submitted to the court on July 14, 2023, only 86 days after the docketing of Plaintiff’s civil action. It was both timely and meritorious, see; Brown v. Del Pozo, CIVIL ACTION No. 1:18-CV-194-SA-DAS, at *1 (N.D. Miss. Mar. 21, 2019);

“The Plaintiff filed his Complaint in Circuit Court on July 18, 2017. On November 13, 2017, within the time provided for under Mississippi Rule of Civil Procedure 4(h), the Plaintiff filed a motion for extension of time to serve the Defendant. The Circuit Court granted the Plaintiff’s motion for extension of time and allowed the Plaintiff an additional 120 days, ending on March 18, 2018, to serve the Defendant.” (emphasis added);

In comparison, Plaintiff only requested a 90 day extension of time and which could be construed as a 60 day extension, given the timing of the request.

And; Dennis v. Nazareth Sch., Case # 12-CV-6394-FPG, at *1 (W.D.N.Y. Aug. 7, 2015)

“This action was commenced on July 25, 2012, when Plaintiff Lorie D. Dennis, filed a Complaint against Defendants Nazareth Schools and Patricia Carroll. ECF No. 1. After the Plaintiff paid the required filing fee on October 19, 2012, the Clerk of the Court issued Summonses for the named Defendants on that same date. By letter dated January 11, 2013 and docketed on January 23, 2013, the Plaintiff requested an extension of time to effect service on the Defendants. ECF No. 7. By Order dated February 4, 2013, Plaintiff was granted an extension of 120 days to serve the Complaint.

The Dennis  federal case highlights Plaintiff took 3 months to pay the filing fee alone, and then obtained an order from the court extending service by another 4 months, after the case had been on the docket for 6 months and 10 days.

Here, Plaintiff paid her filing fee as soon as she obtained the court link to do so, which was 5 days after the posted case was docketed. Plaintiff requested her first extension for meritorious reasons after only 85 days. In summation, compared with the cited cases, there’s no such dilatory acts by Plaintiff, who seeks to fully litigate her case zealously. She is restricted only by declining health, finances and a court which appears eager to violate her constitutional rights to a fair hearing before an impartial judge, defend her homestead and her liberty. That cannot stand, in law.

Not only can a party collect court costs if they prevail in litigation, the party is entitled to recover costs for service even if they ultimately lose; Store Chain, Inc. v. Gilbert, 4:22 CV 938 DDN, at *12 (E.D. Mo. Apr. 12, 2023):

“Store Chain also moves for costs and expenses it incurred in making service on Matkowsky pursuant to Federal Rule of Civil Procedure 4(d)(2). Matkowsky’s prevailing on his motion to dismiss does not disqualify Store Chain from seeking this relief”.

There Is Substantial Ground For Difference Of Opinion

Magistrate Judge Foster should not be applying the law and rules indiscriminately to maliciously target an elderly pro se, non-prisoner litigant who dares to challenge the judiciary machinery itself (Magistrate Judge Foster’s colleagues) by submitting irrefutable evidence of fraud and deception by officers of the court in a civil complaint. If she cannot comply with her own judicial canons and ethics, she should volunteer not to participate any further in this proceeding.

If one reviews Plaintiff’s detailed operative complaint, the underlying litigation in Texas revolves around the predatory lending and financial fraud which resulted in the 2008 financial crisis. This court and circuit are intimately familiar with predatory loans by banks and non-banks, including the recent landmark case before this court, affirmed on appeal to the 8th Circuit, confirming the very abuses and predatory lending which lit the flame to her own civil litigation post great recession. See; ResCap Liquidating Tr. v. Primary Res.l Mortg. No. 13-cv-3451 (SRN/HB) (D. Minn. Aug. 14, 2020). Indeed, Defendant PHH Mortgage was pursued by the U.S. Attorney’s Office, District of Minnesota for ‘submitting defective loans’ and a $74M settlement would be reached per the Department of Justice’s website press release (Aug. 8, 2017).

Returning to the basics of the legal argument itself, Fed. R. Civ. P. is clear in allowing 120 days to serve Defendants; mandatory recovery of fees as requested by Plaintiff is unquestionable, and; case law supports extending the time to serve Defendants, especially if they do not comply with their own professional and ethical rules as officers of the court. Yet, despite this cut-and-dried set of rules and procedures which federal courts and judges frequently adopt around the country, that is problematically not the case in this proceeding.

Certification Will Materially Advance The Ultimate Termination Of The Litigation.

First, it will advance the application of the rule of law, which Magistrate Judge Dolce Foster is clearly aware. Indeed, in her recent order, which included a detailed background of an 8 year old sex offender program civil action commenced by three ‘detainees’, she effectively granted the same relief denied to Plaintiff, see; Senty-Haugen v. Jesson, 14-cv-3405 (JNE/DJF), at *7-8 (D. Minn. Dec. 9, 2022).

Second, it will advance the ultimate termination of the litigation because certification will accelerate the inevitable appeal which Plaintiff will pursue in the event this court renders an adverse final judgment against Plaintiff which is contrary to the laws as described, and which will be a final and appealable order after this court’s August 16, 2023 Show Cause order deadline, or upon Plaintiff’s response, whichever is sooner. See; Greenstate Credit Union v. Hy-Vee, Inc., 500 F. Supp. 3d 799, 808 (D. Minn. 2020):

“Any delay in this case caused by what could be a long interlocutory appeals process is outweighed by the fact that a “significant amount of time, funds, and effort will necessarily be expended by the parties and the court if this matter proceeds to resolution of the substantive merits of plaintiff’s complaint.” Max Daetwyler Corp., 575 F. Supp. at 282. Because an interlocutory appeal would materially advance the ultimate resolution of this case in this forum, the third prong of § 1292(b) is met. ”.

And third, Plaintiff  is “entitled to seek intervention from the trial or appellate court before the deprivation, i.e. his dismissal.” – Parker v. Parker, No. 4:07-CV-00074, at *7 (E.D. Mo. Mar. 13, 2008)(emphasis added).

It should also be remembered that recovery of costs for service are not dependent upon Plaintiff’s civil action prevailing or being dismissed, see; Marcello v. Maine, 238 F.R.D. 113, 115 (D. Me. 2006).

 In summary, the earlier this case is appealed, the faster it may either proceed to discovery and a jury trial, a settlement, or be terminated by the mandate issued by the appellate court itself, if it were to absurdly affirm this court’s Order and judgment.


For the reason set forth herein, pro se, non-prisoner Plaintiff Joanna Burke requests certification for interlocutory appeal.

RESPECTFULLY submitted this 21st day of July, 2023.

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