Opinion
Civil Action No. 06-cv-01114-WYD-CBS.
October 9, 2007
ORDER
This civil action comes before the court on Mr. Custard's "Motion/Respectful Demand for Service of Complaint on U.S. or in the Alternative for Default Judgment" (filed October 5, 2007) (doc. # 132). Pursuant to the Order of Reference dated September 12, 2006 (doc. # 23) and the memorandum dated October 5, 2007 (doc. # 133), the Motion was referred to the Magistrate Judge. The court has reviewed the Motion, the entire case file, and the applicable law and is sufficiently advised in the premises.
The United States has been served and has appeared in this action by filing its Motion to Dismiss (doc. # 94). Thus, Mr. Custard's request for service on the United States is unnecessary and Mr. Custard's alternative request for default judgment against the United States is properly denied.
Further, the court clarifies that Mr. Custard may concurrently sue the United States for a violation of the Federal Tort Claims Act and the individual federal officers under Bivens "by reason of the same subject matter." Mr. Custard simply may not obtain a judgment on both claims, as a judgment against the United States under the FTCA and a judgment against individual federal officers under Bivens would be duplicative. Further, a Bivens claim may be decided by a jury while an FTCA claim is decided by the court.
Accordingly,
IT IS ORDERED that Mr. Custard's "Motion/Respectful Demand for Service of Complaint on U.S. or in the Alternative for Default Judgment" (filed October 5, 2007) (doc. # 132) is DENIED.