Widtfeldt v. United States et al
MEMORANDUM AND ORDER - The plaintiff's complaint is dismissed, without prejudice, pursuant to Rule 4(m) and Rule 41(b). A separate judgment will be entered. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES; INTERNAL
REVENUE SERVICE; ARTHUR
WELP, IRS APPEALS AGENT;
SUCCESSOR IRS AGENT TO
ARTHUR WELP; AND UNITED
MEMORANDUM AND ORDER
This matter is before the Court on the plaintiff's "Motion to Disqualify
John Gerrard as Judge More Time to Finish Summonses" (filing 9), and on
the Court's own motion. The Court will deny the plaintiff's motion, and will
on its own motion dismiss this case without prejudice for failure to serve
process and failure to prosecute.
To begin with, the plaintiff moves the undersigned to recuse himself.
Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be
questioned. 28 U.S.C. § 455(a). But when a party seeks to establish bias or
prejudice from court conduct, the party must show that the judge had a
disposition so extreme as to display clear inability to render fair judgment.
United States v. Melton, 738 F.3d 903, 905 (8th Cir. 2013). And because a
judge is presumed to be impartial, a party seeking recusal bears the
substantial burden of proving otherwise. Hammer v. Sam's East, Inc., 754
F.3d 492, 503 (8th Cir. 2014).
The plaintiff's basis for recusal is that "Lyme illness is an issue in this
case" and the undersigned has purportedly "come out strongly opposed to
necessary treatment of Lyme victims." Filing 9 at 1. The Court is not aware
of any factual basis for this claim, nor, as a matter of fact, does this Court
have any expertise or viewpoint with respect to the treatment of Lyme
disease. For that matter, it is in no way clear how Lyme disease is "an issue"
in this case: the only relief sought by the complaint is the release of Internal
Revenue Service (IRS) records pursuant to the Freedom of Information Act, 5
U.S.C. § 552 (FOIA). The plaintiff has presented no basis to question the
undersigned's impartiality in this case, see Melton, 738 F.3d at 905-06, and
his motion for recusal will be denied.
Attached to the plaintiff's motion were several summons forms, which
he asked the Clerk of the Court to execute for service. That begs an
important question: why, several months after this case was filed, has
process not been served? Fed. R. Civ. P. 4(m) provides:
If a defendant is not served within 120 days after the complaint
is filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.
Thus, under Rule 4(m), there is a two-part inquiry. First, if the Court
concludes there is good cause for plaintiff's failure to serve within 120 days, it
shall extend the time for service. Kurka v. Iowa Cty., 628 F.3d 953, 957 (8th
Cir. 2010). Second, even if the plaintiff fails to show good cause, the Court
still may extend the time for service rather than dismiss the case, if the
plaintiff establishes excusable neglect. Id.
First, the Court must determine whether good cause exists for the
plaintiff's failure to serve the defendant within the 120-day deadline (not
whether good cause exists for an extension). Id. at 958. In determining
whether good cause exists, the Court must focus primarily on the plaintiff's
reasons for not complying with the time limit in the first place. Id. Rule 4(m)
does not define good cause, and courts have not given conclusive meaning to
the phrase. Kurka, 628 F.3d at 957. It does require, at least, good faith and
some reasonable basis for noncompliance with the rules. Id. Among other
things, good cause is likely (but not always) to be found when the plaintiff is
proceeding pro se or in forma pauperis. Id. At its core, however, the standard
of good cause is necessarily amorphous: whether or not it has been satisfied is
largely dependent upon the facts of each individual case. Id.
In this case, the Magistrate Judge already gave the plaintiff two
extensions of time to serve his summons and complaint. Filings 6 and 8. Yet
he failed to do so, and there is almost nothing in the record to show why.
Nothing in the plaintiff's response (filing 7) to the Magistrate Judge's
previous order, or his present motion, reasonably explain why he was unable
serve the completed summons forms that were already provided to him. See
The only explanation the plaintiff provides appears to be—as best the
Court can understand it—that the IRS has actually provided the plaintiff
with information in response to a FOIA request. The Court infers that the
plaintiff needs more time to consider that information. But that does not
explain, in any meaningful way, why process has not been served in this case.
To the extent that it makes any sense, it appears to suggest that the plaintiff
needs more time to determine whether he actually has a claim for relief—
which obviously calls into question whether the plaintiff had a reasonable
basis for filing his complaint in the first place. See Fed. R. Civ. P. 11(b). But
regardless, the plaintiff's assertions fail to show good cause (or, indeed, any
cause) for filing a complaint in federal court and then failing to serve it
within the period specified by the Federal Rules of Civil Procedure.
Nor does excusable neglect warrant extending the service deadline.
Such relief is warranted where a party's failure to meet a deadline is caused
by inadvertence, mistake, or carelessness, as well as by intervening
circumstances beyond the party's control. Kurka, 628 F.3d at 959. In
determining whether neglect is excusable, the following factors are
particularly important: (1) the possibility of prejudice to the defendant, (2)
the length of the delay and the potential impact on judicial proceedings, (3)
the reason for the delay, including whether the delay was within the party's
reasonable control, and (4) whether the party acted in good faith. Id. These
factors do not bear equal weight, as the reason for delay is generally a key
factor in the analysis, see id., and as discussed above, the reason for delay in
this case has not been explained. See Peer v. Vilsack, 563 F. App'x 504, 506
(8th Cir. 2014). Absent a reasonable explanation for the delay, the Court has
no basis to find excusable neglect.
In sum, the plaintiff was given notice by the Magistrate Judge—twice—
that he needed to serve process. See filings 6 and 8. The last time, he was told
in no uncertain terms that he had until November 18, 2015 to serve his
summons and complaint on the defendant and that "[n]o additional time will
be granted." Filing 8. Dismissal under Rule 4(m) is appropriate.
Furthermore, dismissal is also appropriate pursuant to Fed. R. Civ. P.
41(b). See, Boyle v. Am. Auto Serv., 571 F.3d 734, 742-43 (8th Cir. 2009);
Schooley v. Kennedy, 712 F.2d 372, 373-74 (8th Cir. 1983). Even pro se
litigants must comply with relevant rules of the substantive and procedural
law. Schooley, 712 F.2d at 373. The plaintiff received meaningful notice of
what was required of him, see id., and has failed to comply with the
Magistrate Judge's orders and prosecute this case.
IT IS ORDERED:
The plaintiff's complaint is dismissed, without prejudice,
pursuant to Rule 4(m) and Rule 41(b).
A separate judgment will be entered.
Dated this 23rd day of November, 2015.
BY THE COURT:
John M. Gerrard
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?