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Parker v. Clingerman

April 21, 2009

GUY W. PARKER, PLAINTIFF,
v.
BETTY W. CLINGERMAN, DEFENDANT.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING MOTION TO DISMISS ACTION WITH PREJUDICE [doc. #31] and DIRECTING ENTRY OF JUDGMENT

On February 4, 2008, Guy W. Parker, appearing pro se, filed what he designated as a "Pure Bill for Equitable Discovery of Contract Officer of Record" that the Court deemed a complaint. In his complaint, plaintiff seeks "Discovery of Contract Officer of Record for Contract GA8621-04-D-6250." On January 26, 2009, defendant filed a motion to dismiss the complaint for failure to serve the appropriate entities and for failure to file this action in the appropriate court, i.e., the Court of Federal Claims. The motion to dismiss was set for hearing on April 6, 2009. On February 2, 2009, plaintiff filed a response to the motion to dismiss which stated "[t]he cause of action for this complaint is satisfied and concluded." (Response at 1.) Plaintiff contended that defendant's "Motion to Dismiss is moot." (Plf's Ps&As at 2.) Finally, plaintiff stated that "[t]his contractor requests the United States District Court Southern District of California conclude Case No.: 3:08-cv-00212-L-WMC." Id. at 10. Notwithstanding these statements, plaintiff provided "legal arguments" in opposition to the merits of defendant's motion to dismiss. (See Plf's Ps&As at 2-9.) Aware of the inconsistent nature and intent of plaintiff's statements in his response to the motion to dismiss, the Court gave plaintiff an opportunity to either dismiss the action or go forward with the motion on the merits. Plaintiff did not respond to the Court's February 9, 2009 Order. Accordingly, the Court enters the following decision on the merits of defendant's motion to dismiss.

1. Insufficiency of Service of Process

Federal Rule of Civil Procedure 4(m) requires a plaintiff to effectuate service of process on defendants within 120 days after the filing of the complaint. If plaintiff fails to serve the complaint within the time provided, Rule 4(m) further provides the court "shall dismiss the action without prejudice as to that defendant or direct that serve be effected within a specified period of time."

Additionally, under Federal Rule of Civil Procedure 12(b)(5), a case may be dismissed for insufficient service of process. A 12(b)(5) motion properly challenges the mode of delivery or lack of delivery of the summons and complaint. Wasson v. Riverside County, 237 F.R.D. 423, 424 (C.D. Cal. 2006); United States v. Hafner, 421 F.Supp.2d 1220, 1223, n. 3 (D.N.D. 2006).

Plaintiff filed his complaint on February 4, 2008, and a summons was issued. On February 8, 2008, plaintiff filed a return of summons [doc. #3] that was subsequently stricken from the record because of several procedural deficiencies which prevented effective service of process. (See Order filed February 12, 2008 [doc. #7].) Thereafter, plaintiff filed a return of service with respect to defendant Betty Clingerman. (See doc. # 9.)

On March 5, 2008, the office of the United States Attorney for the Southern District of California filed a "notice of failure to serve defendant." (See doc. #12.) The notice sets forth that plaintiff sought certain documents to which he claimed he was entitled pursuant to a contractual relationship with the United States Air Force. The government pointed out that defendant was named as a federal employee in her individual capacity. Id. Nevertheless, the United States concluded that plaintiff's complaint should properly be directed only at the federal employee defendant in her official, not individual, capacity. But whether defendant is named as a federal employee in her official or individual capacity, the United States argued correctly that under Federal Rule of Civil Procedure 4(i), plaintiff failed to serve the proper entities.

Rule 4(i) provides in relevant part:

(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.

(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 civil-process 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 ...


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