Opinion
Case No. A4-02-109
March 19, 2003
MEMORANDUM AND ORDER
Before the Court is the Plaintiff's Motion for Default Judgment and the Government's Motion to Dismiss pursuant to Rules 12(b)(1) and12(b)(6)of the Federal Rules of Civil Procedure. The basis for the Government's motion is a lack of subject matter jurisdiction and the plaintiff's alleged failure to properly serve the United States Attorney for the District of North Dakota. For reasons outlined below, the Court DENIES both motions.
I. BACKGROUND OF THE CASE
Plaintiff Brian Chase ["Chase"] initiated the above-entitled action on October 10, 2002, asserting claims of sex discrimination and retaliation against his employer, the Immigration and Naturalization Service ["INS"]. Chase filed an amended complaint on October 15, 2002.
Chase filed a motion for default judgment on February 13, 2003, asserting that the Defendant had been properly served but had failed to file a timely answer to the complaint. The Government filed a response to Chase's motion for default judgment and a motion to dismiss on February 19, 2003, asserting that Rule 55(e) of the Federal Rules of Civil Procedure precludes the entry of default judgment against the Government, and that this Court lacks jurisdiction over Chase's claims because there has been no waiver of sovereign immunity, and that service of process was defective. In reply, Chase asserted that service was properly effectuated; that this Court has jurisdiction as the Defendant is being sued in his official capacity as the United States Attorney General and head of the Department of Justice of which the INS is a part; and that the Title VII claims are not precluded by the doctrine of sovereign immunity. Chase also effectively abandoned his Motion for Default Judgment, stating that he "does not want a default judgment against the Defendant." See Plaintiff's Return to Defendant's Motion, p. 3. Thus, the Court need only address the merits of the Government's Motion to Dismiss.
II. LEGAL ANALYSIS
When considering a motion to dismiss, the Court must construe the complaint liberally and assume all factual allegations to be true. Goss v. City of Little Rock, 90 F.3d 306, 308 (8th Cir. 1996) Dismissal should not be granted unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts that would entitle relief. Id.
[T]he United States, as sovereign, is immune from suits unless it has consented to be sued. Peterson v. United States, 428 F.2d 368, 369 (8th Cir. 1970). "A corollary to the immunity doctrine is the rule that the United States may define the conditions under which actions are permitted against it." Id.
In its motion to dismiss, the Government offers no analysis with respect to the issue of sovereign immunity. The Government merely states that it cannot be sued unless Chase can establish a waiver of sovereign immunity. However, Title VII of the Civil Rights Act of 1964 contains a limited waiver of sovereign immunity. See 42 U.S.C. § 2000e, et. seq. The Civil Rights Act of 1991 extended Title VII protections to federal employees of executive agencies. See 42 U.S.C. § 2000e-16. Chase is employed by the INS, an executive agency. See 5 U.S.C. § 101 and 105. Thus, the Government's blanket assertion that Chase's suit is precluded by the doctrine of sovereign immunity fails. The Court next considers the Government's assertion regarding the insufficiency of service of process.
As an aside, the Court notes that as a precondition to filing a civil action in federal district court, federal employees asserting Title VII claims must first exhaust their administrative remedies. See McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir. 1995). Chase stated in his complaint that he exhausted his administrative remedies, that is, filed complaints with the Equal Employment Opportunity Commission, prior to initiating the above-captioned action. Although it is unclear when Chase filed his complaints or what action if any was undertaken by the EEOC, the Government has not raised the exhaustion requirement as a grounds for dismissal.
The Government asserts that service of process was defective because Chase failed to comply with the requirements of Rule 4(i) of the Federal Rules of Civil Procedure. Rule 4(i) provides:
Service upon the United States shall be effected
(A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of court or by sending a copy of the summons and complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney and
(B) by also sending a copy of the summons and of the complaint by registered mail to the Attorney General of the United States at Washington, District of Columbia. . . .
The record reflects that the Defendant has been served with a copy of the summons, complaint, and amended complaint. The record further reflects that a copy of the summons and amended complaint was served upon the United States Attorney's civil process clerk on February 25, 2003, by the Sheriff of Cass County, North Dakota. Thus, it appears that any defect in service has been cured and that Chase is in compliance with the requirements of Rule 4(i).
III. CONCLUSION
Chase's Motion for Default Judgment (Docket No. 6) is DENIED. The Government's Motion to Dismiss (Docket No. 9) is DENIED.
IT IS SO ORDERED.