Uttecht et al v. Napolitano et al

Filing 33

MEMORANDUM OPINION granting 25 Motion to Dismiss. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (AOA)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
THOMAS UTTECHT, SANJUANA
UTTECHT, BENJAMIN UTTECHT,
SILAS UTTECHT, ASHER UTTECHT,
PHOEBE UTTECHT, LEAH UTTECHT,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
JANET NAPOLITANO, Secretary
)
Department of Homeland
)
Security; SCOTT BANIECKE,
)
Field Office Director,
)
Immigration and Customs
)
Enforcement; MARK FOXALL,
)
Director, Department of
)
Corrections, Douglas County, )
ERIC HOLDER, Attorney General )
of the United States,
)
)
Defendants.
)
______________________________)

8:12CV347

MEMORANDUM OPINION

This matter is before the Court on the defendants’
motion to dismiss for lack of subject matter jurisdiction, lack
of personal jurisdiction, and insufficient service of process
(Filing No. 25).

The Court finds that the motion should be

granted.
On a motion to dismiss based on insufficient service of
process at the pleading stage, plaintiffs bear the burden of
establishing a prima facie case of sufficiency of service of
process.

Northrup King Co. v. Compania Productora Semillas

Algodoneras Selectas, S.A., 51 F.3d 1383, 1387 (8th Cir. 1995).
In the present case, the Government contacted plaintiffs’ counsel
to alert him to the fact that the Government had not received
proper service.

On December 13, 2012, plaintiffs’ counsel

docketed a document titled “SUMMONS Returned Executed,”
presumably in an attempt to prove compliance with the
requirements for serving the United States, its Agencies,
Officers, or Employees.

See Fed. R. Civ. P. Rule 4(i)(1)(A)(i)

(requiring delivery of a copy of the summons to the United States
Attorney).

However, the docketed summons did not bear the

signature of the Clerk of the Court or the Court’s seal as
required by Rule 4.

Fed. Civ. P. Rule 4(a)(1).

Since that time, plaintiffs have not attempted to
remedy this defect, submit further evidence of the sufficiency of
process, or file a timely response to the defendants’ motion to
dismiss.

The Court finds that plaintiffs have failed to make a

prima facie showing of the sufficiency of service of process.

A

separate order will be entered in accordance with this memorandum
opinion.
DATED this 4th day of April, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court