Hecht v. Internal Revenue Service

Filing 18

MEMORANDUM AND ORDER denying 17 Motion for Relief. Signed by District Judge Daniel D. Crabtree on 4/10/19. Mailed to pro se party Aaron J. Hecht by regular mail (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

AARON J. HECHT,
Plaintiff,
v.

Case No. 17-4118-DDC-TJJ

INTERNAL REVENUE SERVICE,
Defendant.

MEMORANDUM AND ORDER
On December 13, 2018, the court dismissed pro se plaintiff1 Aaron J. Hecht’s case
without prejudice under Federal Rule of Civil Procedure 4(m) because plaintiff had failed to
serve defendant. Now, this matter is before the court on a letter from plaintiff that has been
docketed as a “Motion for Relief from Judgment” (Doc. 17). For reasons explained below, the
court denies plaintiff’s Motion.
I.

Background
Plaintiff filed his Complaint in this case on December 21, 2017. Doc. 1. His original

deadline to serve process was March 21, 2018, under Fed. R. Civ. P. 4(m). Doc. 6 at 1. But,
Magistrate Judge Teresa J. James extended plaintiff’s deadline to June 19, 2018, because
plaintiff paid his filing fee about two months after filing his Complaint. Id. Plaintiff did not

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Because plaintiff proceeds pro se, the court construes his filings liberally and holds them to “a less stringent
standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[I]f
the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so
despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor syntax
and sentence construction, or his unfamiliarity with pleading requirements.”); see also Clark v. Oklahoma, 468 F.3d
711, 713 n.1 (10th Cir. 2006). But the court does not become an advocate for the pro se party. See Hall, 935 F.2d at
1110. Likewise, plaintiff’s pro se status does not excuse him from complying with the court’s rules or facing the
consequences of noncompliance. See Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994)).

meet the extended June 19 deadline to serve process. Doc. 7 at 1. So, the court required him to
show good cause in writing, by July 11, 2018, why the court should not dismiss his case for
failing to serve the Summons and Complaint by that deadline. Id.
On July 23, 2018, the court entered judgment dismissing plaintiff’s Complaint without
prejudice. Doc. 9. But, when it dismissed the Complaint, the court had overlooked a letter
plaintiff had directed to the court. Doc. 10. The court had received the letter on July 12, 2018.
Id. Though plaintiff’s submission was not timely, the court nonetheless vacated its dismissal of
plaintiff’s action on August 31, 2018. Doc. 11. In its Order vacating its earlier dismissal, the
court granted plaintiff another extension of time, giving him until October 1, 2018, to serve
defendant. Doc. 12.
More than two weeks after this extended deadline, plaintiff still had not served defendant.
Because plaintiff already had paid a filing fee for this action, the court granted him one final
extension until November 17, 2018, to serve defendant. Doc. 13. But, as the court warned
plaintiff, if he failed to serve defendant by the November 17 deadline, the court would dismiss
his action without prejudice.
Again, plaintiff missed his court-mandated deadline. So, nearly a month after the
November 17 deadline, the court dismissed plaintiff’s action, as it had warned plaintiff it would
do. See Doc. 15 (dated December 13, 2018). And, until plaintiff filed his most recent Motion
(dated January 24, 2019), the docket reflected that plaintiff—after several deadline extensions—
had failed to serve defendant.
II.

Legal Standard
Plaintiff’s most recent filing cites no authority supporting his request. But, the court

liberally construes his letter as a motion seeking relief under Federal Rule of Civil Procedure

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60(b). Rule 60(b) permits a district court to relieve a party from a final judgment or order. A
court may grant a Rule 60(b) motion on the following grounds:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b); (3) fraud . . . misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged . . . ; or (6) any other reason that justifies
relief.
Fed. R. Civ. P. 60(b). But, relief under Rule 60(b) is “ʻextraordinary and may only be granted in
exceptional circumstances.’” Lebahn v. Owens, 813 F.3d 1300, 1306 (10th Cir. 2016) (quoting
ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735, 754 (10th Cir. 2011)). A Rule 60(b) motion
is no substitute for a direct appeal, and a party may not revisit issues already presented in prior
filings. Id.
III.

Analysis
Plaintiff asserts that he has tried, multiple times, to serve defendant. He contends that he

“used certified mail to send a summons” to the offices of the United States Attorney for the
District of Kansas, the United States Attorney General, and the Internal Revenue Service
(“IRS”).2 Doc. 17 at 1; see also id. at 2–4. He also represents that he “received green cards back
in the mail”—presumably, returns of service—from the offices of the United States Attorney and
the United States Attorney General. Doc. 17 at 1. Plaintiff attaches copies of these “green card”
returns of service, noting that he “needed to take [them] back to [the] Clerk’s Office.” Id. at 4.

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Plaintiff lists the “Attorney General of Kansas” as one recipient of the summonses he sent, but the copies of the
returns of service he attaches to his motion show that he sent these summonses to the offices of the United States
Attorney for the District of Kansas, as well as the United States Attorney General and the Internal Revenue Service.
Doc. 17 at 2–4.

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But, plaintiff asserts, he never received a return of service from the IRS. Plaintiff says he thrice
attempted to mail summonses to the IRS, once using a different address.3
Applying Rule 60(b), plaintiff’s Motion doesn’t direct the court to any part of the record
that demonstrates mistake, inadvertence, surprise, or excusable neglect. See Fed. R. Civ. P.
60(b)(1) (emphasis added). Here, plaintiff could have notified the court of his attempts to serve
defendant. Plaintiff also introduces no newly discovered evidence. See id. at 60(b)(2) (emphasis
added). He does not assert that defendant committed fraud, misrepresentation, or misconduct.
See id. at 60(b)(3). And, he does not contend that the court’s dismissal is void, already satisfied,
based on a reversed or vacated judgment, or inequitable in its future application. See id. at
60(b)(4)–(5). Finally, plaintiff doesn’t provide “any other reason that justifies relief,” id. at
60(b)(6), that rises to the level of “‘extraordinary circumstances’” warranting exercise of the
court’s “‘broad authority to relieve a party from a[n] [order].’” See Shepard v. Rangel, 730 F.
App’x 610, 614 (10th Cir. 2018) (explaining that courts may exercise this authority under Rule
60 “when ‘necessary to accomplish justice’ based on ‘extraordinary circumstances’” (quoting
State Bank of S. Utah v. Gledhill, 76 F.3d 1070, 1080 (10th Cir. 1996))).
Plaintiff did not provide any information to the court about his service attempts during
the months of multiple extensions that the court gave him. Had plaintiff notified the court about
these attempts to serve process on defendant, the court’s analysis may have been different. But,
plaintiff waited more than two months after his final extended deadline—and more than one
month after the court dismissed his case—to explain his failure to serve defendant. See Docs.
13, 15, & 16.

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Plaintiff includes copies of the Certified Mail receipts he received when he sent these summonses to the IRS.
These receipts are dated June 19, 2018; September 20, 2018; and November 9, 2018. See Doc. 17 at 2–3.

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In sum, plaintiff has received many chances to discharge an elemental step in prosecuting
his suit. Still, one week shy of its first anniversary, plaintiff hadn’t navigated his case even to the
starting line. To reinstate the case under these circumstances would not honor the court’s duties
under Rule 1 of the Federal Rules of Civil Procedure. The court thus denies plaintiff’s Motion
seeking relief from the judgment in this case. See Docs. 15, 16.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s “Motion for
Relief from Judgment” (Doc. 17) is denied.
IT IS SO ORDERED.
Dated this 10th day of April, 2019, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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