Opinion
CV 21-02902-ODW (AS)
06-02-2022
Danny Fabricant v. Commissioner of Internal Revenue
CIVIL MINUTES - GENERAL
Honorable Alka Sagar, United States Magistrate Judge
Proceedings (In Chambers): ORDER TO SHOW CAUSE RE SERVICE OF PROCESS ON DEFENDANT
On April 4, 2021, Plaintiff Danny Fabricant, (“Plaintiff”), a federal prisoner at the U.S. Penitentiary in Lompoc, California, proceeding pro se, filed a Complaint seeking a declaratory judgment against the Commissioner of Internal Revenue (“Defendant”). On November 15, 2021, after Plaintiff had paid the filing fee for this case, the Court determined that the Complaint could be served on Defendant and issued orders directing Plaintiff to complete Process Receipt and Return forms (“USM-285 forms”), and submit them to the Court for forwarding to the U.S. Marshal to serve Defendant. (Dkt. Nos. 23-24).
The Court's docket reflects that on March 22, 2022, the United States Marshal served “[Defendant] Commissioner of Internal Revenue at 1500 Pennsylvania Avenue, N.W. Washington DC 20229.” (Dkt. No. 30). On June 1, 2022, the government filed a Notice of Plaintiff's failure to serve the United States of America indicating that Plaintiff did not direct the United States Marshal Service to properly serve Defendant because Plaintiff failed to serve the United States as required by Fed.R.Civ.P. 4(i)(1)(A) & (m). (Dkt. No. 31). Rule 4 requires Plaintiff to serve the United States “by delivering a copy of the summons and complaint, by certified or registered mail, to the United States Attorney for the district in which the action is brought, and sending a copy of the summons and complaint by certified or registered mail to the Attorney General of the United States in Washington, D.C. at [the following] addresses [ ]: (1) Civil Process Clerk, Office of the United States Attorney, Room 7516, Federal Building, 300 North Los Angeles Street, Los Angeles, CA 90012; and (2) Attorney General, U.S. Department of Justice, Ben Franklin Station, P.O. Box 683, Washington, D.C. 20044. Id.
Rule 4(m) of the Federal Rules of Civil Procedure provides that “[i]f a defendant is not served within 90 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.”
Accordingly, Plaintiff is ORDERED TO SHOW CAUSE, in writing, no later than July 5, 2022, why this action should not be dismissed without prejudice as to Defendant for failure to complete service of the operative complaint in a timely manner. This Order may be discharged upon the filing of an amended USM-285 form (“Process Receipt and Return”) and form notice of submission setting forth the correct address where Defendant can be served, or by filing a declaration under penalty of perjury stating why Plaintiff is unable to do so.
The Clerk is directed to attach to this Order a copy of the Court's Order re service of process, dated November 15, 2021 (Dkt. No. 23), and provide Plaintiff with USM-285 forms, copies of the Order Directing Service, and a form Notice of Submission.
If Plaintiff no longer wishes to pursue this action against Defendant, he may request a voluntary dismissal of this action without prejudice. See Fed.R.Civ.P. 41(a). A notice of dismissal form is attached for Plaintiff's convenience.
Plaintiff is warned that a failure to timely respond to this Order may result in a recommendation that this action be dismissed with prejudice for failure to prosecute and obey court orders. See Fed.R.Civ.P. 41(b).
IT IS SO ORDERED.