House v. Internal Revenue Service

Filing 10

MEMORANDUM OPINION & ORDER: It is ordered that Dft's 8 MOTION to Dismiss for Lack of Jurisdiction is GRANTED. Signed by Judge Joseph M. Hood on 7/25/2011.(SCD)cc: COR,Pro Se Pla(via US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
RONALD T. HOUSE

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)
) Civil Action No. 5:10-CV-320-JMH
)
)
) MEMORANDUM OPINION AND ORDER
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)
)

Plaintiff,
v.
INTERNAL REVENUE SERVICE,
Defendant.
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The United States has filed a Motion to Dismiss [Record No. 8]
and Plaintiff has filed a Response [Record No. 9].

This Court

being sufficiently advised, this Motion is now ripe for decision.
I.

PROCEDURAL HISTORY
On September 10, 2010, Pro Se Plaintiff Ronald T. House filed

a complaint against Defendant Internal Revenue Service before this
Court in the form of a letter requesting a “refund of carry back
losses for tax years 2002 and 2003.”

[Record No. 1].

Nearly seven

months later, this Court ordered Plaintiff to show cause as to why
the complaint against the IRS should not be dismissed without
prejudice for failure to prosecute.

[Record No. 4].

Plaintiff

proceeded to send a summons, which was returned executed on May 4,
2011, to Defendant at the following address: “Internal Revenue
Service, Austin, TX 73301-0025."

[Record No. 5]; [Record No. 6];

[Record No. 7]. Defendant argues, however, that Plaintiff has not
served Defendant Internal Revenue Service according to Rule 4 and
regardless, the United States, not the Internal Revenue Service, is

the proper party to a suit seeking a tax refund pursuant to 28
U.S.C. § 7422(f).
II.

[Record No. 8].

STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(2) for lack of

personal jurisdiction and Rule 12(b)(5) for insufficient service,
while presenting two distinct bases for dismissal, are closely
interrelated.
jurisdiction

Indeed,
over

a

a

court

defendant

if

may

not

plaintiff

procedural requirement of service of summons.

exercise
has

personal

not

met

the

O.J. Distrib., Inc.

v. Hornell Brewing Co., 340 F.3d 345, 353 (6th Cir. 2003)(quoting
Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1081 (6th Cir.
1990)).

Thus, a defendant may

“challenge personal jurisdiction

‘by way of an attack on service of process.’”

Gundaker/Jordan Am.

Holdings, Inc. v. Clark, No. 04-226-JBC, 2009 U.S. Dist. LEXIS
55796, at *2 n.1 (E.D. Ky. June 26, 2009) (quoting Japan Gas
Lighter Ass’n v. Ronson Corp., 257 F. Supp. 219, 229 (D.N.J.
1966)).

Should this Court find that Plaintiff has failed to

properly serve Defendant, therefore, it shall grant Defendant’s
motion based on lack of personal jurisdiction and insufficiency of
service.
After

filing

a

complaint,

the

plaintiff

must

defendant with a summons and a copy of the complaint.
P. 4(c).

serve

the

Fed. R. Civ.

Rule 4(m) requires that a Plaintiff serve the Defendant

within 120 days following the filing of the complaint.
2

Fed. R.

Civ. P. 4(m).

Should a Plaintiff fail to properly serve Defendant

within this time, the Court “must dismiss the action without
prejudice” unless “the plaintiff shows good cause for the failure.”
Id.

Upon a showing of good cause, “the court must extend the time

for service for an appropriate period.”

Id. “Establishing good

cause is the responsibility of the party opposing the motion to
dismiss . . . and ‘necessitates a demonstration of why service was
not made within the time constraints.’”

Nafziger v. McDermott

Int’l, Inc., 467 F.3d 514, 521 (6th Cir. 2006) (quoting Habib v.
GMC, 15 F.3d 72, 73 (6th Cir. 1994)).

The Sixth Circuit has

recognized, however, that Rule 4 should be construed liberally
against a pro se plaintiff as “pro se plaintiffs [have] no reason
to know their service of process [is] technically inadequate.”
Habib, 15 F.3d at 75 (interpreting former Rule 4(j) that required
a court dismiss a complaint without prejudice should a plaintiff
not show good cause why service was not made within 120 days after
filing the complaint).

A court, however, does not abuse its

discretion in finding that a plaintiff who does “not disclose any
effort, however minimal, . . . to effect service of process” on a
defendant has not shown good cause requiring an extension of time
to correct the procedural error.

Bush v. City of Zeeland, 74 Fed.

App’x 581, 583 (6th Cir. 2003).

3

III. ANALYSIS
While Plaintiff has filed an executed summons on the Internal
Revenue Service [Record No. 7], Plaintiff has failed to properly
serve Defendant, an agency of the United States.

Rule 4(i)(2)

requires Plaintiff “serve the United States and also send a copy of
the summons and of the complaint by registered or certified mail to
the

agency,

effectuate

corporation,

service

officer

against

Internal Revenue Service.

a

or

United

employee”
States

in

agency,

Fed. R. Civ. P. 4(i)(2).

order

to

like

the

To serve the

United States, plaintiff must deliver a copy of the summons and
complaint to the United States Attorney for the district where the
action is brought, the Attorney General of the United States, and
in cases involving a non-party agency or officer of the United
States,

that

agency

or

officer.

Fed.

R.

Civ.

P.

4(i)(1).

Plaintiff, however, has only attempted to serve the Internal
Revenue Service, failing to meet the requirements of Rule 4(i).1
See [Record No. 5]; [Record No. 6]; [Record No. 7].
Furthermore,

Plaintiff

has

not

shown

good

cause

in

his

Response to Defendant’s Motion to Dismiss requiring this Court to

1

The Court recognizes that suits meant to recover erroneously
collected internal revenue tax may only be maintained against the
United States. 26 U.S.C. § 7422(f)(1). This statute, however,
also allows this court to “substitute the United States as a party”
and allow the case to proceed, upon proper service of the United
States. 28 U.S.C. § 7422(f)(2). Thus, should the Plaintiff have
properly effected service on the United States or should Plaintiff
show good cause for an extension of time to serve the United
States, statute allows for the correction of Plaintiff’s mistake.
4

extend the time allowed for Plaintiff to properly serve the United
States.

In requiring district courts to be lenient in finding a

pro se plaintiff has shown good cause for failing to serve a
defendant within 120 days of the filing of the complaint, the Sixth
Circuit

considered

whether

the

pro

se

plaintiff

has

other

extenuating circumstances requiring attention and whether the pro
se plaintiff exercised “reasonable and diligent efforts to complete
service . . . .”

Habib v. GMC, 15 F.3d 72, 75 (6th Cir. 1994)

(extending time for service when a pro se plaintiff attempted to
serve

the

defendant,

albeit

ineffectively,

in

response

to

a

magistrate judge’s order despite facing medical needs related to a
sudden illness).

Reasonable diligence requires a showing that

Plaintiff went “beyond simply sending the Defendant a document in
pursuing his lawsuit.”

Warner v. Bob Evans, 74 Fed. R. Serv. 3d

(Callaghan) 1160 (E.D. Ky. 2009).
Plaintiff,

however,

has

failed

to

show

any

extenuating

circumstances or reasonable diligence that would establish good
cause, even under the more lenient standard used for pro se
plaintiffs.

Attempted service within the 120 day period allowed

under Rule 4(m), follow-up visits with the clerk’s office to check
on the progress of the lawsuit, follow-up visits with the post
office

to

check

on

the

progress

of

the

mailed

summons

and

complaint, and immediate action to effect proper service upon
determining plaintiff’s initial service was ineffective have all

5

been found to show reasonable diligence on the part of a pro se
plaintiff.

See Habib, 15 F.3d 72; Warner, 74 Fed. R. Serv. 3d

(Callaghan) 1160.

In response to Defendant’s motion, however,

Plaintiff only argues that he should have time to serve the United
States, which is the proper party to a tax refund action, without
addressing the issue of insufficient service or attempting to show
good cause for his procedural error.

[Record No. 9, p. 1].

Furthermore, Plaintiff failed to effectuate proper service within
120 days of the complaint and in response to this Court’s Show
Cause Order of April 5, 2011 alerting Plaintiff to the requirements
of service under Rule 4, Plaintiff has again failed to properly
serve Defendant.

See generally [Record No. 1]; [Record No. 4];

[Record No. 6]; [Record No. 7].

Plaintiff has also failed to show

any extenuating circumstances, such as a medical condition, that
might excuse this procedural failure.

Thus, Plaintiff has not

shown good cause for failing to properly serve Defendant within 120
days of the complaint and this Court shall grant Defendant’s Motion
to Dismiss for insufficient service of process and lack of personal
jurisdiction.
IV.

CONCLUSION
Defendant has shown that Plaintiff has failed to properly

effectuate

service

in

its

Motion

to

Dismiss.

Furthermore,

Plaintiff’s Response has not shown good cause for his failure to
serve

Defendant.

Thus,

this

Court

6

does

not

have

personal

jurisdiction over Defendant and this Court shall grant Defendant’s
Motion to Dismiss.
Accordingly, IT IS ORDERED, that Defendant’s Motion to Dismiss
[Record No. 8] is GRANTED.
This the 25th day of July, 2011.

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