Opinion
Case No. 3:17-CV-01936-AC
11-19-2018
CURTIS B. LEISS, Plaintiff, v. UNITED STATES OF AMERICA; UNITED STATES POST OFFICE; OFFICE OF PERSONNEL MANAGEMENT; DEPARTMENT OF LABOR; and C.B.I. FARMERS UNION SEED CLEANING INC., Defendants.
FINDINGS AND RECOMMENDATION :
Plaintiff, Curtis B. Leiss ("Leiss"), appearing pro se, filed this lawsuit on December 4, 2017, against the Secretary of State of North Dakota, Government Treasurer, seeking a direct deposit of $2,200,000 to his Wells Fargo bank account (the "Complaint"). (ECF No. 1.) The court granted Leiss's application to proceed in forma pauperis the same day (the "IFP Order"). (ECF No. 4)
In the IFP Order, the court directed Leiss to, within thirty days of the filing date of the IFP Order:
(1) Prepare an original summons for each defendant and submit it to the Clerk of Court for issuance;The IFP Order also gave Leiss the option "to complete service pursuant to Fed. R. Civ. P. 4 without the aid of the U.S. Marshals Service" and advised that if he chose that avenue, "return(s) of service should be promptly filed following completion of service."
(2) Provide the original and sufficient copies of the issued summons, the complaint, and any scheduling order for service upon each defendant to the Clerk of the Court for service; and
(3) Complete the U.S. Marshals Service Form (USM285) for each defendant and submit it to the Clerk of Court.
When Leiss failed to timely file returns of service, the court issued an Order to Show Cause on April 16, 2018 (the "First Order""). (ECF No. 13.) In the First Order, the court advised Leiss 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." FED. R. CIV. P. 4(m) (2018). The First Order directed Leiss to file a written statement on or before April 30, 2018, setting forth the status of the action and whether good cause existed for his failure to timely serve defendant and to appear before the court on May 7, 2018, to show cause why the case should not be dismissed for lack of service.
On April 30, 2018, Leiss filed an "Affidavit of Order to Show Cause, Section 1924" (the "Affidavit") seeking $75,488.00 in costs from the Secretary of State, ND, and referencing a mandated appeal of a trademark petition, costs from a Montana lawsuit, and breach of an option to purchase found in a lease. (ECF No. 19.) Attached to the Affidavit was correspondence from North Dakota relating to Leiss's attempt to register Farmer Cenex Services, Inc., as a foreign business and from Montana relating to Leiss's "Registration of Mark" with regard to "curtis b leiss dba Yellowstone Truck Stop Inc;" tax forms for Farmer Cenex Service; and applications and reports relating to Leiss's copyright registration of a work entitled "predecessor and successor."
Leiss appeared at the May 7, 2018 show cause hearing and attempted to explain his failure to service the Secretary of the State of North Dakota. Taking into account Leiss's pro se status and evident confusion with regard to service requirements, the court "instructed plaintiff to proceed the to 7th floor Clerk's Office after the hearing to get summons and US Marshal forms in order to properly serve the defendant in this case with a summons and copy of his complaint," and extended the service deadline to June 7, 2018. (ECF No. 15.) The record reveals the Clerk's Office issued and forwarded completed summons, a U.S. Marshals Service Form (USM285), and copies of the Complaint and the Order to the U.S. Marshals on May 14, 2018. Leiss never filed proof of service on the Secretary of State of North Dakota. Instead, he filed a motion to amend the Complaint on June 13, 2018, which the court granted.
In the Amended Complaint filed June 13, 2018 (the "Amended Complaint"), Leiss names the United States of America, United States Post Office, Office of Personnel Management, Department of Labor, and C.B.L. Farmers Union Seed Cleaning Inc. as defendants. (ECF No. 23) The Amended Complaint, which bears the caption "Complaint for Employment Discrimination," alleges defendants violated Title VII of the Civil Rights Act of 1964 when "curtis b. leiss the successor contractor hires curtis b. leiss predecessor" based on an actual or perceived disability and defendants owe him $4,800,000 in annual salary in the form of an IRS state refund for Montana.
Leiss filed a motion for default judgment on June 29, 2018, claiming defendants failed to "respond within the time frame." (ECF No. 26.) In a July 5, 2018 status conference, the court directed Leiss to file "any returns of service upon the named defendants for entry in the ECF Docket for this case" and denied Leiss's motion as premature. (ECF No. 28.) Later that day, Leiss filed a "certificate of certified regular mails" with receipts for first class postage to Cincinnati, Ohio; Bismark, North Dakota; Austin, Texas; and Fresno, California, and postage for certified mail, return receipt requested, to Washington, D.C. all dated June 29, 2018. (ECF No. 29) On August 14, 2018, Leiss filed a return receipt indicating that on August 14, 2018, Leiss signed for certified mail addressed to the United States Postal Service in Washington, D.C. and with a check from the Oregon Lottery in the amount of $4.00 attached. (ECF No. 31.)
The court issued another Order to Show Cause on October 16, 2018, reminding Leiss of his obligation to serve defendants within ninety days after filing the Amended Complaint and explaining the service options available to him in light of the IFP Order (the "Second Order"). (ECF No. 32). The Second Order again directed Leiss to file a written statement on or before November 7, 2018, setting forth the status of the action and whether good cause existed for his failure to timely serve the defendants and to appear before the court on November 14, 2018, to show cause why the case should not be dismissed for lack of service. The court expressly informed Leiss "that failure to show good cause will result in the dismissal of this case without prejudice against the unserved defendants."
On November 7, 2018, Leiss filed a motion for appointment of counsel but did not provide any justification for his failure to timely serve the defendants named in the Amended Complaint. (ECF No. 34.) Leiss appeared at the November 14, 2018 hearing, admitted he had not served the defendants (specifically the United States Postal Service which Leiss implied was the only viable defendant), indicated he did not have the money or the documents required to complete service, and asked an attorney be appointed to assist in accomplishing service.
The court finds Leiss's stated reasons for his failure to timely serve defendants does not amount to good cause. First, the IFP Order allows Leiss to rely on the U. S. Marshal to effect service on the defendants. Leiss needed merely to obtain forms from the Clerk's Office, and complete and return the forms, with copies of the Amended Complaint, to the Clerk of Court to initiate service by the U.S. Marshal. Any expense incurred by Leiss under this scenario would be limited to the cost to obtain copies of the Amended Complaint, which is only six-pages long and copying it is unlikely to result in financial hardship. Second, the court provided Leiss with detailed instructions on how to serve the Complaint and the record reveals Leiss was able to obtain and complete the required forms without assistance from counsel at that time. Finally, even if the court were to appoint counsel, Leiss would likely bear at least part of the financial burden to accomplish service on the named defendants.
Leiss failed to serve either the Complaint or the Amended Complaint on the relevant defendants despite specific direction from the court and additional time to complete service. Leiss did not offer good cause or a valid reason for his for failure to serve the Amended Complaint. Consequently, the court should decline the opportunity to extend the deadline to serve the Amended Complaint and should dismiss this action without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
While Leiss consented to trial of this matter by a magistrate judge, the Ninth Circuit has held that 28 U.S.C. § 636 requires all parties named in the complaint, even unserved defendants, to consent to the magistrate judge's jurisdiction. Williams v. King, 875 F.3d 500, 503 (9th Cir. 2017).
Scheduling Order
The Findings and Recommendation will be referred to a district judge for review. Objections, if any, are due December 6, 2018. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 19th day of November, 2018.
/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge