Wagner v. McHugh et al

Filing 23

MEMORANDUM AND ORDER that Wagner's Motion to Compel 6 is denied. Wagner's Motion for Clerk's Entry of Default 8 is denied. Defendants' Motion to Dismiss 10 is denied without prejudice to reassertion. Wagner's "Rebu ttal to Motion to Dismiss" 12 is denied. Defendants' Motion to Strike 14 is granted. The court directs the clerk's office to strike Filing Number 12-1 at CM/ECF p. 6 through Filing Number 12-5 from the record. Wagner shall have unt il 45 days from the date of this Memorandum and Order to effect service of process on Defendants. Failure to properly serve any Defendant within 45 days will result in the dismissal of the claims against that Defendant. The court directs the clerk's office to set the following pro se case management deadline: Mary 3, 2013: Deadline for Wagner to properly serve Defendants. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LAURENCE R. WAGNER,
Plaintiff,
v.
THE HONORABLE JOHN
McHUGH, et al.,
Defendants.

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8:12CV174

MEMORANDUM
AND ORDER

This matter is before the court on Defendants’ Motion to Dismiss. (Filing No.
10.) Also pending are Defendants’ Motion to Strike, and Plaintiff Laurence Wagner’s
(“Wagner”) Motion to Compel, Motion for Clerk’s Entry of Default, and Objection to
Defendants’ Motion to Dismiss. (Filing Nos. 6, 8, 12, and 14.) As discussed in detail
below, the court will deny Defendants’ Motion to Dismiss, and provide Wagner an
additional 45 days in which to effect service of process on Defendants.
I. DEFENDANTS’ MOTION TO DISMISS
Defendants filed a Motion to Dismiss on November 1, 2012. (Filing No. 10.)
They argue that this matter should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(5) for insufficient service of process. The court agrees with
Defendants that service of process is insufficient, but declines to dismiss the case at this
time.
Defendants are employees and agencies of the United States of America. (Filing
No. 1 at CM/ECF pp. 1-2.) The requirements for service of process on the United
States, its agencies, officers, and employees are found in Federal Rule of Civil
Procedure 4(i). Rule 4(i) provides in relevant part:

(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 civilprocess 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
(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).
Stated another way, in order to serve the federal agencies and employees that
Wagner has named as defendants, he must serve the United States by delivering a copy
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of the summons and complaint to the United States Attorney for the District of
Nebraska, or by sending such copies by registered or certified mail to the civil process
clerk at the United States Attorney’s Office. See Fed. R. Civ. P. 4(i)(1)(A). In
addition, he must serve a copy of the summons and complaint on the Attorney General
of the United States by registered or certified mail. See Fed. R. Civ. P. 4(i)(1)(B).
Wagner must also serve the agencies, employees, and officers in addition to serving
the United States. See Fed. R. Civ. P. 4(i)(2) and (3).
The docket sheet reflects that no summonses have been issued as to any
Defendant. Indeed, Wagner admits that his only attempt at service was to use the
“waiver of service of summons” process under Rule 4(d). However, Rule 4(d) plainly
applies to individuals, corporations, or associations subject to service under Rule 4(e),
(f), or (h), not to service on the United States under Rule 4(i). See Fed. R. Civ. P. 4(d)
(“An individual, corporation, or association that is subject to service under Rule 4(e),
(f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The
plaintiff may notify such a defendant that an action has been commenced and request
that the defendant waive service of a summons.”). See also John v. Sec’y of Army, 484
Fed.Appx. 661, 665 (3d Cir. 2012) (holding Rule 4(d)’s waiver of service method does
not apply to service on the United States or its agencies). Furthermore, even if it were
proper to serve Defendants under Rule 4(d), when Defendants did not return the
waivers, Wagner was required to effect service by the traditional means, which he did
not do.
The court agrees with Defendants that Wagner has not effected service of
process. However, upon careful consideration, the court will not dismiss Wagner’s
Complaint. Rather, on the court’s own motion, Wagner will have an additional 45 days
in which to effect service of process on Defendants. See McCaslin v. Cornhusker State
Indus., 952 F. Supp. 652, 659 (D. Neb. 1996) (“[w]hile a defect in service may result
in the dismissal of the improperly served person, a court has broad remedial power to
correct the service . . . especially where justice demands and prejudice would not result
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to the improperly served parties”). Wagner is cautioned that he must comply with the
Federal Rules of Civil Procedure in serving Defendants. Failure to properly serve any
Defendant within 45 days will result in the dismissal of Wagner’s claims against that
Defendant.
II. MOTIONS TO COMPEL AND FOR DEFAULT JUDGMENT
Wagner asks this court to compel Defendants to provide him with the addresses
of five Defendants so that he can “complete the mailing of the Waiver of Summons to
each and every listed Defendant.” (Filing No. 6 at CM/ECF p. 2.) Wagner also asks
the court to enter default judgment against Defendants because they have not waived
service of process. (Filing No. 8.) However, as discussed above, Wagner must serve
Defendants in accordance with Federal Rule of Civil Procedure 4(i), not by utilizing
Rule 4(d)’s waiver of service method. Accordingly, the court will deny Wagner’s
Motion to Compel and Motion for Clerk’s Entry of Default.
III. DEFENDANTS’ MOTION TO STRIKE
Wagner attached 52 pages of documents to his “Rebuttal to Motion to Dismiss.”
(Filing No. 12.) As best as the court can tell, Wagner has offered these documents as
“evidence” in support of his Complaint. Defendants argue that these documents should
be stricken from the record because they are not authenticated, and Wagner did not
make a showing of their admissibility. (Filing No. 15.)
The “evidence” attached to Wagner’s Rebuttal relates entirely to the merits of
Wagner’s claims, and is immaterial at this stage of the proceedings. Moreover, the
court agrees with Defendants that the documents are not authenticated, and Wagner did
not make a showing of their admissibility. For these reasons, the court will grant
Defendants’ Motion to Strike, and direct the clerk’s office to strike Filing Numbers 12-

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1 through 12-5. See Fed. R. Civ. P. 12(f) (“The court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter”).
IT IS THEREFORE ORDERED that:
1.

Wagner’s Motion to Compel (Filing No. 6) is denied.

2.

Wagner’s Motion for Clerk’s Entry of Default (Filing No. 8) is denied.

3.
Defendants’ Motion to Dismiss (Filing No. 10) is denied without
prejudice to reassertion.
4.

Wagner’s “Rebuttal to Motion to Dismiss” (Filing No. 12) is denied.

5.
Defendants’ Motion to Strike (Filing No. 14) is granted. The court directs
the clerk’s office to strike Filing Number 12-1 at CM/ECF p. 6 through Filing Number
12-5 from the record.
6.
Wagner shall have until 45 days from the date of this Memorandum and
Order to effect service of process on Defendants. Failure to properly serve any
Defendant within 45 days will result in the dismissal of the claims against that
Defendant.1
7.
The court directs the clerk’s office to set the following pro se case
management deadline: Mary 3, 2013: Deadline for Wagner to properly serve
Defendants.
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The clerk’s office already provided Wagner with 58 summons forms.
(See Filing No. 2.) If Wagner needs additional forms, he must request them from the
clerk’s office or retrieve them from the Forms page on the court’s Web site at
http://www.ned.uscourts.gov/forms.
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DATED this 19th day of March, 2013.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide
on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court
accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to
work or directs the user to some other site does not affect the opinion of the court.

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