Tai et al v. Internal Revenue Service, The, et al

Filing 45

ORDER. The Court:(1) OVERRULES Plaintiffs' Objections 41 ; (2) ADOPTS the Recommendation 38 and (3) DISMISSES without prejudice the Complaint 3 . By Judge Raymond P. Moore on 2/10/2015.(tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Case No. 13-cv-00766-RM-BNB
NORMAN TAI, and
CANDIS TAI,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
THE INTERNAL REVENUE SERVICE,
SUSAN MEREDITH,
MITCHELL COX, and
JASON BLOUCH,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter comes before the Court on Magistrate Judge Boyd N. Boland’s
Recommendation (ECF No. 38) to dismiss Plaintiffs Norman Tai and Cadis Tai’s (collectively,
“Tais”) Complaint (ECF No. 3) for failure to serve timely Defendants the United States of
America, the Internal Revenue Service, Susan Meredith, Mitchell M. Cox, and Jason Blouch.
Plaintiffs filed a response (“Objections”) to the Recommendation within the time permitted for
pro se parties to file an objection. (ECF No. 41.) Defendants filed a reply to Plaintiffs’
Objections. (ECF No. 42.)
For the reasons set forth below, the Court (1) OVERRULES Plaintiffs’ Objections; (2)
ADOPTS the Recommendation; and (3) DISMISSES Plaintiffs’ Complaint without prejudice.

I.

LEGAL STANDARDS
A.

Review of the Magistrate Judge’s Report and Recommendation

When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule
of Civil Procedure 72(b)(3) requires that the district court judge “determine de novo any part of
the magistrate judge’s [recommendation] that has been properly objected to.” In conducting its
review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3). An objection to a recommendation is proper if it is filed timely in accordance with the
Federal Rules of Civil Procedure and specific enough to enable the “district judge to focus
attention on those issues – factual and legal – that are at the heart of the parties’ dispute.” United
States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S.
140, 147 (1985)). In the absence of a timely and specific objection, “the district court may
review a magistrate’s report under any standard it deems appropriate.” Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed. R. Civ. P. 72 Advisory
Committee's Note (“When no timely objection is filed, the court need only satisfy itself that there
is no clear error on the face of the record in order to accept the recommendation.”).
B.

Pro Se Status

Plaintiffs are proceeding pro se. The Court, therefore, reviews their pleadings and
other papers liberally and holds them to a less stringent standard than those drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United
States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). A pro se litigant's
conclusory allegations without supporting factual averments are insufficient to state a claim upon
which relief can be based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may

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not assume that a plaintiff can prove facts that have not been alleged or that a defendant has
violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc.
v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113
F.3d 1170, 1173-74 (10th Cir. 1997) (stating a court may not supply additional factual
allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff’s behalf)
(citation omitted); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a
court may not construct arguments or theories for the plaintiff in the absence of any discussion of
those issues) (citations omitted). Plaintiffs’ pro se statuses do not entitle them to application of
different rules of civil procedure. See Hall, 935 F.2d at 1110; Wells v. Krebs, Case No. 10 CV
00023, 2010 WL 3521777, at *2 (D. Colo. Sept. 1, 2010) (citation omitted).
C.

Service of Process

Rule 4(i) 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;
(B) send a copy of each by registered or certified mail to the Attorney General of
the United States at Washington, D.C.; and

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(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)(1), (2) and (3).
Rule 4(e) of the Federal Rules of Civil Procedure provides that service on an individual
within a judicial district of the United States shall be made as follows:
(e) Serving an Individual Within a Judicial District of the United States. Unless
federal law provides otherwise, 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;

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(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
(C) delivering a copy of each to an agent authorized by appointment or by
law to receive service of process.
Fed. R. Civ. P. 4(e).
II.

BACKGROUND AND ANALYSIS
No party objects to Magistrate Judge Boland’s recitation of the matter’s procedural and

factual posture. (ECF No. 38.) Accordingly, the Court adopts and incorporates the procedural
and factual history included within the Recommendation as if set forth herein.
Plaintiffs, in their objections to the Recommendation, submit that they served Agent
Blouch on March 8, 2013. (ECF No. 41 (citing ECF No. 40).) The Court rejects such an
averment regarding proof of service. See Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th Cir.
1996) (holding that issues raised for the first time in objections to a magistrate judge’s
recommendation are deemed waived) (citations omitted). Proof of service regarding Agent
Blouch (ECF No. 40) was filed on December 16, 2013, and Magistrate Judge Boland issued his
Recommendation on December 2, 2013 (ECF No. 38).
Plaintiffs do not object to the Recommendation’s finding that they did not effectuate and
file proper proof of service, i.e., the Summons and the Complaint, on or before November 18,
2013 with respect to any Defendant. (ECF No. 38 at 6.)
The Court has reviewed the Recommendation, the Objections, and conducted a de novo
review of the docket, and concludes that Magistrate Judge Boland’s analysis of the issues was
thorough and his conclusions were correct. Plaintiffs never complied with Rule 4 of the Federal
Rules of Civil Procedure and service pursuant to Rule 105.1 of the Colorado Rules of Civil

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Procedure is inapplicable in this matter as at issue are federal tax liens, 26 U.S.C. § 6321. See
Colo. Rev. Stat. § 38-35-201(4)(a).
III.

CONCLUSION
Based on the foregoing, the Court:
(1)

OVERRULES Plaintiffs’ Objections (ECF No. 41);

(2)

ADOPTS the Recommendation (ECF No. 38); and

(3)

DISMISSES without prejudice the Complaint (ECF No. 3).

DATED this 10th day of February, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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