Tai et al v. Internal Revenue Service, The, et al
Filing
33
ORDER denying without prejudice 13 Motion to Dismiss; denying as moot 21 Motion to Enter Order. The plaintiffs shall effect service on the defendants and file proof by 11/18/13. by Magistrate Judge Boyd N. Boland on 11/1/13.(bnbcd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-00766-RM-BNB
NORMAN TAI, and
CANDIS TAI,
Plaintiffs,
v.
THE INTERNAL REVENUE SERVICE,
SUSAN MEREDITH,
R.A. MITCHELL,
M. COX, and
JASON BLOUCH,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the following:
(1) The defendants’ Motion to Dismiss [Doc. #13, filed 05/03/2013] (the “Defendants’
Motion”); and
(2) The plaintiffs’ Motion to Enter Order [Doc. #21, filed 06/07/2013] (the “Plaintiffs’
Motion”).1
The Defendants’ Motion is DENIED without prejudice and the Plaintiffs’ Motion is
DENIED as moot.
The plaintiffs are proceeding pro se, and I must liberally construe their pleadings. Haines
v. Kerner, 404 U.S. 519, 520-21 (1972). I cannot act as advocate for a pro se litigant, however,
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The Plaintiff’s Motion requests “an order to deny Defendant’s [sic] Motion.”
who must comply with the fundamental requirements of the Federal Rules of Civil Procedure.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
This action was removed from the Garfield County District Court on March 25, 2013.
The plaintiffs are suing the Internal Revenue Service (“IRS”) and three Revenue Agents for
causing notices of liens to be recorded and filed in Garfield County, Eagle County, and the
Office of the Secretary of State. Verified Complaint [Doc. #1-1], pp. 2-4.2 The notices relate to
the IRS’s assessment of federal income tax liabilities and penalties for the 2003, 2004, 2005,
2006, and 2008 tax periods. Notices of Federal Tax Lien [Doc. 1-1], pp. 34-38. The plaintiffs
assert that the defendants violated state and federal law, including the Internal Revenue Code
and the Federal Debt Collection Procedure Act.
The defendants seek dismissal on several bases, including the plaintiffs’ failure to effect
proper and timely service of process. Defendants’ Motion, pp. 2-3. The plaintiffs are suing an
agency of the United States and employees of the United States. Complaint, pp. 1-3. Rule 4 of
the Federal Rules of Civil Procedure provides that service on the United States and its agencies
and employees shall be made as follows:
(1) United States. To serve the United States, a party must:
(A)(I) deliver a copy of the summons and of the complaint to the
United States attorney for the district where the action is
brought--or to an assistant United States attorney or clerical
employee whom the United States attorney designates in a writing
filed with the court clerk--or
(ii) send a copy of each by registered or certified mail to the
civil-process clerk at the United States attorney's office;
2
Citation to the state court documents is to page numbers as assigned by this court’s
docketing system.
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(B) send a copy of each by registered or certified mail to the
Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or
officer of the United States, send a copy of each by registered or
certified mail to the agency or officer.
(2) Agency; Corporation; Officer or Employee Sued in an Official
Capacity. To serve a United States agency or corporation, or a
United States officer or employee sued only in an official capacity,
a party must serve the United States and also send a copy of the
summons and of the complaint by registered or certified mail to the
agency, corporation, officer, or employee.
(3) Officer or Employee Sued Individually. To serve a United
States officer or employee sued in an individual capacity for an act
or omission occurring in connection with duties performed on the
United States’ behalf (whether or not the officer or employee is
also sued in an official capacity), a party must serve the United
States and also serve the officer or employee under Rule 4(e), (f),
or (g).
Fed. R. Civ. P. 4(i)(2) and (3).
Under Rule 4(e), Fed. R. Civ. P.:
an individual--other than a minor, an incompetent person, or a
person whose waiver has been filed--may be served in a judicial
district of the United States by:
(1) following state law for serving a summons in an action brought
in courts of general jurisdiction in the state where the district court
is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the
individual personally;
(B) leaving a copy of each at the individual's dwelling or usual
place of abode with someone of suitable age and discretion who
resides there; or
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(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
On May 21, 2013, the plaintiffs filed a “Certificate of Service and Proof of Delivery”
[Doc. #17] indicating that on March 7, 2013, they complied with the service requirements of
Rule 105.1, Colo. R. Civ. P. Colorado Rule 105.1 addresses the procedure for challenging
spurious liens.
Section 38-35-204, C.R.S., provides an expedited process to challenge spurious liens.
Section 204 provides in pertinent part:
1) Any person whose real or personal property is affected by a
recorded or filed lien or document that the person believes is a
spurious lien or spurious document may petition the district court
in the county or city and county in which the lien or document was
recorded or filed or the federal district court in Colorado for an
order to show cause why the lien or document should not be
declared invalid.
Colorado Rule 105.1 provides that “[t]he petitioner shall issue a notice to respondent
setting forth the time and place for the hearing on the show cause order” and that the notice
“shall be served by the petitioner on the respondent . . . by (1) mailing a true copy thereof by
first class mail to each respondent at the address or addresses stated in the lien or document . . .
.” The limited purpose of the show cause hearing is for the court to determine if the lien is
spurious.3 Therefore, the service requirements of Colorado Rule 105.1 are unique to a spurious
lien challenge; service of process for claims other than spurious liens is controlled by Rule 4.
3
A spurious lien is one that “[i]s not provided for by a specific Colorado or federal statute
. . . .” C.R.S. § 38-35-201(4)(a). Federal tax liens, however, are provided for by 26 U.S.C. §
6321.
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The plaintiffs did not respond to the defendants’ service of process argument, Opposition
to Motion to Dismiss [Doc. #20], and they have made no showing that they served the defendants
pursuant to Rule 4. Without proof of service, the court lacks personal jurisdiction over the
defendants. See Oklahoma Radio Associates v. F.D.I.C., 969 F.2d 940, 943 (10th Cir. 1992)
(stating that “Rule 4 service of process provides the mechanism by which a court having venue
and jurisdiction over the subject matter of an action asserts jurisdiction over the person of the
party served”).
Moreover, a petition to remove to federal court does not constitute a general appearance
sufficient to waive objections to jurisdiction. See Barton v. Horowitz, No. Civ. A. 97 N 1980,
1999 WL 502151, at *7 n. 1 (D. Colo. Mar. 11, 1999) (collecting cases); 28 U.S.C. § 1446(b)
(“requiring that the notice of removal be filed within 30 days after receipt “through service or
otherwise” of a copy of the initial pleading) and Commentary on 1988 Revision of Section 1446,
“Does 30-Day Period for Removing Start from Any Service That Gives Notice, or Only from
Proper Service?” (stating that “[i]f there’s a defect of service in the case under state law, the
defendant may raise that issue before the federal court after removal (and seek dismissal based
on it)”); 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1082
(Civil 3d 2002) (“A defendant does not waive objections to personal jurisdiction or service of
process by removing the action to a federal court”).
The Federal Rules of Civil Procedure provide:
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.
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Fed. R. Civ. P. 4(m).
More than 120 days has passed since this action was removed from state court. Pursuant
to Rule 4(m), I may order the plaintiffs to effect proper service within a specified time.
IT IS ORDERED:
(1) The plaintiffs shall effect service on the defendants pursuant to Rule 4, Fed. R. Civ.
P., and file proof of that service on or before November 18, 2013;
(2) Failure to comply with this order may result in sanctions, including dismissal of the
Complaint with prejudice;
(3) The defendants’ Motion to Dismiss [Doc. #13] is DENIED without prejudice; and
(4) The plaintiffs’ Motion to Enter Order [Doc. #21] is DENIED as moot.
Dated November 1, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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