United States of America v. Ewing et al

Filing 36

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT EWINGS MOTIONS TO DISMISS re 9 MOTION to Dismiss filed by Christopher Ewing, 14 MOTION to Dismiss filed by Christopher Ewing. Signed by Judge Richard A. Schell on 3/30/15. (cm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
CHRISTOPHER EWING and
WELLS FARGO HOME MORTGAGE,
Defendants.

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Case No. 4:13-CV-530

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT EWING’S
MOTIONS TO DISMISS
The following are pending before the court:
1.

Defendant Ewing’s motion to dismiss (docket entry #9); and

2.

United States’ response in opposition to Christopher Ewing’s motion to dismiss, or,
in the alternative, United States’ motion and brief for additional time to serve
Christopher Ewing (docket entry #12).

1.

Defendant Ewing’s motion to dismiss due to violation of Federal Rule 4(m) and Rule
4(c)(2) (docket entry #14);

2.

United States’ response in opposition to Christopher Ewing’s motion to dismiss due
to violation of Federal Rule 4(m) and Rule 4(c)(2) (docket entry #15); and

3.

Defendant Ewing’s “A Question to be Answered” (docket entry #26).

Having considered Defendant Ewing’s motions to dismiss and the responsive briefing thereto, the
court finds that the motions should be denied.
BACKGROUND
On August 14, 2013, the Plaintiff sent a pre-suit letter to the Defendant by certified mail. The
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Plaintiff sent the letter to the Defendant at 1029 Hampshire Lane, Carrollton, Texas 75007. In the
letter, the Plaintiff advised the Defendant of its intention to file suit against the Defendant in an effort
to collect unpaid income taxes for tax years 1995 – 2008, as well as any penalties. The Plaintiff
notified the Defendant that the amount due for all assessments was $828,562.06 as of April 11, 2013.
The Plaintiff invited the Defendant or his counsel to contact the Plaintiff regarding arrangements for
payment or settlement of the Defendant’s tax liability in an effort to avoid litigation. The Plaintiff
advised the Defendant that if such arrangements could not be made, the Plaintiff would commence
suit within thirty days after August 14, 2013.
After receiving the Plaintiff’s pre-suit letter, the Defendant contacted the Plaintiff on
September 13, 2013. During the conversation, the Defendant indicated to the Plaintiff that he had
mailed a letter to the Plaintiff in response to the pre-suit letter. The Plaintiff received the
Defendant’s letter on September 16, 2013. On the letter, the Defendant listed his address as 1029
Hampshire Lane, Carrollton 007, Texas, Tax Excepted, Zip Exempt.
On September 13, 2013, the Plaintiff filed its complaint seeking to reduce to judgment certain
federal income tax liabilities owed by the Defendant and to foreclose on certain real property owned
by the Defendant. The summons to the Defendant was issued on September 16, 2013. On October
24, 2013 and again on October 29, 2013, Internal Revenue Service Revenue Officer Michelle Brown
attempted to personally serve the Defendant three times at his residence. Although efforts at
personal service were unsuccessful, Revenue Officer Brown noticed that the Defendant’s truck was
parked at the residence on two of the occasions that she attempted personal service.
Thereafter, the Plaintiff mailed the Defendant a copy of the summons and complaint by
certified mail on November 4, 2013 as permitted by Local Rule CV-4(d)(2) and TEX . R. CIV . P.
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106(a)(2). The Plaintiff mailed the same to 1029 Hampshire Lane, Carrollton, Texas 75007. The
summons and complaint were returned to the Plaintiff on December 4, 2013. The envelope bore a
stamp stating:
RETURN TO SENDER
UNCLAIMED
UNABLE TO FORWARD
RETURN TO SENDER.
On February 13, 2014, counsel for the Plaintiff, Jon E. Fisher, personally went to the
Defendant’s home at 1029 Hampshire Lane, Carrollton, Texas 75007 to serve the Defendant with
the summons and complaint. Mr. Fisher rang the doorbell, and an adult woman answered the door.
After discussing the purpose of his visit with the woman for a few minutes, the woman opened the
door. Mr. Fisher then handed the woman a copy of the summons and complaint. The woman
accepted the documents from inside the house. The woman eventually closed the door while still
maintaining possession of the summons and complaint.
Thereafter, the Defendant filed two motions to dismiss. The Defendant argues that the
Plaintiff failed to timely effect service of process. The parties agree that the 120 day period to timely
effect service of process expired on January 11, 2014. Since the Plaintiff did not serve the Defendant
with process until February 13, 2014 (153 days after the complaint was filed), the Plaintiff was 33
days late serving the Defendant. The Defendant further contends that service was “abandoned and
dropped at the door to a homeless woman . . .” Finally, the Defendant argues that since a party may
not serve a summons or complaint, service was improper because counsel for the Plaintiff effected
service. Likewise, the Defendant contends that the unsuccessful attempts at service were improper
because those attempts were made by a party (an IRS Revenue Officer). As such, the Defendant

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moves to dismiss the complaint pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure.
DISCUSSION AND ANALYSIS
“Rule 12(b)(5) allows a defendant to file a motion to dismiss for insufficient service of
process.” Holmes v. All American Check Cashing, Inc., 2015 WL 1166629, *1 (N.D. Miss. March
13, 2015), citing FED . R. CIV . P. 12(b)(5). “A district court ‘enjoys a broad discretion in determining
whether to dismiss an action for ineffective service of process.’” Id., quoting George v. U.S. Dep't
of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986). “Dismissal pursuant to Rule 12(b)(5) has been held
to be an ‘extreme sanction.’” Id., citing Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247
(5th Cir. 1980). “When service of process is challenged, the serving party bears the burden of
proving its validity or showing good cause for failure to effect timely service.” Id., citing Sys. Signs
Supplies v. U.S. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990).
“Rule 4(m) [of the Federal Rules of Civil Procedure] permits a district court to dismiss a case
without prejudice if the plaintiff fails to serve the defendant within 120 days of filing the complaint.”
Millan v. USAA General Indemnity Co., 546 F.3d 321, 325 (5th Cir. 2008), citing Thompson v.
Brown, 91 F.3d 20, 21 (5th Cir. 1996). “If, however, the plaintiff can establish good cause for failing
to serve the defendant, the court must extend the time for service.” Id., citing Thompson, supra.
“Even if the plaintiff lacks good cause, the court has discretionary power to extend the time for
service.” Id., citing Thompson, supra. “A discretionary extension may be warranted, ‘for example,
if the applicable statute of limitations would bar the refiled action, or if the defendant is evading
service or conceals a defect in attempted service.’” Id., quoting FED . R. CIV . P. 4(m) advisory
committee's note (1993).
Here, the Plaintiff attempted to serve the Defendant with personal service on three separate
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occasions in October 2013. Further, when the Plaintiff’s efforts at personal service failed, the
Plaintiff attempted to serve the Defendant by certified mail in November 2013. After the certified
mail was returned to the Plaintiff as undeliverable on December 4, 2013, the Plaintiff’s counsel
personally served the summons and complaint on an adult woman at the Defendant’s residence on
February 13, 2014.
While it is apparent that the Plaintiff was initially diligent in attempting to serve the
Defendant, the court questions the over two month delay from the time the certified mail was
returned as undeliverable (December 4, 2013) to the time the Defendant was finally served (February
13, 2014). The Plaintiff provided the court with no explanation for this delay; however, the court
need not ultimately answer this question. As provided in the advisory committee’s note, the court
may grant a discretionary extension of time to serve the Defendant if the applicable statute of
limitations would bar the refiled action or if the Defendant evaded service. According to the
Plaintiff, both provisions apply. The Plaintiff argues that if the court were to dismiss this case, the
applicable statute of limitations might bar the Plaintiff from including tax years 1995 – 1997 in a
subsequent lawsuit against the Defendant. Further, the facts show that the Defendant was evading
service. As noted above, although Revenue Officer Brown noticed that the Defendant’s truck was
parked at the residence on two of the occasions that she attempted personal service, the Defendant
did not answer the door. Additionally, even though the certified mail was sent to the Defendant at
the correct address, the Defendant refused to sign for the certified mail.
Based on the foregoing, the court finds that it has discretionary authority to grant an
extension of time for the Plaintiff to effect service. Although the Plaintiff’s request for an extension
of time to effect service has expired, the court shall grant the Plaintiff’s request. Accordingly, the
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court hereby GRANTS the Plaintiff’s request for a 33 day extension of time in which to effect
service of process on the Defendant.
Having granted the Plaintiff’s request for an extension of time to serve the Defendant, the
court turns to the Defendant’s remaining arguments. First, the Defendant argues that the Plaintiff
abandoned process at the door of his home with a homeless woman. According to Mr. Fisher’s
declaration, however, Mr. Fisher himself personally handed a copy of the summons and complaint
to a woman who opened the door from inside the home. The woman apparently accepted the copies
of the documents and then closed the door to the house. Accordingly, the court finds the
Defendant’s argument lacks merit.
Second, the Defendant argues that Mr. Fisher, as the attorney for the Plaintiff, was not
permitted by law to serve the Defendant with process. However, the Defendant’s argument is
contrary to law; an attorney for a party may serve a summons and complaint. See Play by Play Toys
& Novelties, Inc. v. De Chai Industria e Commercio de Roupas LTDA, 2000 WL 33348787, *3
(W.D. Tex. 2000).
Finally, the Defendant argues that the unsuccessful attempts at service were improper because
those attempts were made by a party (an IRS Revenue Officer). However, since the IRS and its
agents are not parties to this lawsuit, an IRS agent could properly serve (or attempt to serve) the
Defendant. See Kish v. Rogers, 2008 WL 2463819, *5 (S.D. Tex. 2008).
Based on the foregoing, Defendant Ewing’s motion to dismiss (docket entry #9) and
Defendant Ewing’s motion to dismiss due to violation of Federal Rule 4(m) and Rule 4(c)(2) (docket
entry #14) are hereby DENIED. The Plaintiff’s motion for additional time to serve Christopher
Ewing (docket entry #12) is hereby GRANTED.
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IT IS SO ORDERED.

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SIGNED this the 30th day of March, 2015.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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