Widtfeldt v. Daugherty et al
MEMORANDUM AND ORDER - Plaintiff shall file his proof of service in this case within 14 days of the date of this Memorandum and Order with the Clerk of the Court for the District of Nebraska. Plaintiff's objections to the F&R are overruled in p art and granted in part. The F&R of the magistrate judge, Filing No. 7 , is adopted to the extent set forth in this Memorandum and Order; however, the court will not dismiss the case at this time. The magistrate judge is ordered to determine if the plaintiff complies with this Memorandum and Order and to take the appropriate steps thereafter. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(AOA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEMORANDUM AND ORDER
JAMES DAUGHERTY, Revenue Officer;
INTERNAL REVENUE SERVICE,
This matter is before the court on the plaintiff’s objections, Filing Nos. 8 and 9, to the
findings and recommendation (F&R) of the magistrate judge, Filing No. 7. Plaintiff filed his
complaint on April 15, 2013, alleging he did not owe certain taxes. Filing No. 1. Plaintiff did not
show that he effectuated service on the defendants as of November 13, 2013. Consequently,
on November 13, 2013, the magistrate judge issued an order giving the plaintiff until December
16, 2013, to file evidence of service or show cause why the case should not be dismissed for
failure to prosecute. Filing No. 6. The plaintiff did not respond. On December 19, 2013, the
magistrate judge issued his F&R that this case be dismissed for failure to prosecute and failure
to comply with a court order. Filing No. 7.
Thereafter, on January 3, 2014, plaintiff filed his
objections to the F&R. Filing Nos. 8 and 9.
Plaintiff objects arguing that he served the summonses on Daughterty, the IRS and the
United States Treasury on or about May 13, 2013. Thus, plaintiff contends the court should
enter default against all defendants and order judgment in his favor for $100 million in lost
opportunity costs and to nullify an Internal Revenue tax judgment. With regard to the United
States Department of Justice, United States Treasury, James Daugherty, and the United States
Postal Service, plaintiff attaches a proof of service saying he mailed it by postal certified letter
on May 8, 2013, and it was delivered on May 13, 2013. Filing No. 8 at ECF 6-7, 9-10 and 1213.
The court is going to give plaintiff 14 days from the date of this Memorandum and Order
to file his proofs of service with the Clerk of Court. Failure to do so will result in immediate
dismissal. The court will instruct the magistrate judge to monitor this case and determine if
plaintiff has complied with this order. If in fact plaintiff files the proofs of service, the magistrate
judge can then determine whether the summons have been effectuated on the correct parties
and in the correct manner and determine how to further progress the case.
The court admonishes the plaintiff that failure to comply with any future orders will
subject this case to immediate dismissal.
THEREFORE, IT IS ORDERED:
Plaintiff shall file his proof of service in this case within 14 days of the date of this
Memorandum and Order with the Clerk of the Court for the District of Nebraska.
2. Plaintiff’s objections to the F&R are overruled in part and granted in part.
3. The F&R of the magistrate judge, Filing No. 7, is adopted to the extent set forth in this
Memorandum and Order; however, the court will not dismiss the case at this time.
The magistrate judge is ordered to determine if the plaintiff complies with this
Memorandum and Order and to take the appropriate steps thereafter.
Dated this 30th day of January, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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