Opinion
No. 1:04-cv-130.
November 16, 2004
MEMORANDUM AND ORDER
Plaintiff Harold Wayne Centers has filed three pro se motions. [Court File Nos. 13, 14, 15]. In the most recent motion [Court File No. 15], the plaintiff voluntarily dismisses his complaint against defendant Brenda Lee Centers pursuant to Rule 41(a) of the FEDERAL RULES OF CIVIL PROCEDURE. However, it is not entirely clear from this same motion whether the plaintiff also wants to dismiss his complaint against defendants Gregg Brown and the United States Department of the Treasury, Internal Revenue Service ("IRS").
The record further shows that the plaintiff has not effected service of process upon defendants Gregg Brown and the ("IRS") within the 120-day time limit provided in Rule 4(m) of the FEDERAL RULES OF CIVIL PROCEDURE. Plaintiff will be ordered to show good cause why his complaint against defendants Gregg Brown and the IRS should not be dismissed without prejudice under Rule 4(m) for failure to timely effect service of process. I. Background
In his complaint filed on May 4, 2004 [Court File No. 1], plaintiff names three defendants: Brenda Lee Centers, Gregg Brown, and the IRS. Plaintiff served process on Brenda Centers and she filed her answer on June 10, 2004. [Court File No. 3]. Plaintiff has not effected valid service of process upon Gregg Brown and the IRS within 120 days after the filing of the complaint as required by FED. R. CIV. P. 4(m). Plaintiff has not complied with FED. R. CIV. P. 4(i) in his attempt to effect service of process on the IRS, an agency of the United States government.
The Court will not endeavor here to set forth every twist and turn in the plaintiff's convoluted, confusing allegations of fact. For present purposes, it is sufficient to find that Brenda Centers has divorced Harold Wayne Centers. Brenda Centers has legal custody of their three minor children, and the Circuit Court of Bradley County, Tennessee, ordered Harold Wayne Centers to pay child support. It appears that Harold Wayne Centers failed, neglected, or refused to pay child support and he has accumulated a substantial child support arrearage. Brenda Centers has taken action in the Circuit Court of Bradley County to recover the child support arrearage. The State of Tennessee, Department of Human Services, Child Support Services assisted Brenda Centers in her efforts to recover child support. Harold Wayne Centers has been arrested and incarcerated in the Bradley County Jail for failure to pay child support and violation of court orders. With this basic background in mind, we now turn to the plaintiff's motions.
II. Plaintiff's Miscellaneous Motion [Court File No. 14]
On November 1, 2004, the plaintiff filed a document that purports to be a motion. [Court File No. 14]. The first page is captioned "Motion to State Construction and Constitution," and the second page is captioned "Motion to Dicover [ sic] Construction and Constitution." In fact, this document is not a motion for relief. The document is mistakenly denominated as a motion. The document merely sets forth the plaintiff's views and beliefs on various religious matters and the law. It is more accurately described as being in the nature of a statement of the plaintiff's ideas and principles rather than a motion.
Accordingly, the plaintiff's "motion" [Court File No. 14] is DENIED. The Clerk of Court is DIRECTED to TERMINATE this purported "motion" from the docket.
On page 17 of the "motion" [Court File No. 14], the plaintiff indicates that he wishes to add and include the State of Tennessee, Department of Human Services, Child Support Services as a party defendant in the instant lawsuit. Plaintiff in effect wants to join the State of Tennessee as a defendant. However, the plaintiff has not bothered to file a motion for leave of Court and permission to amend his complaint pursuant to Rule 15(a) of the FEDERAL RULES OF CIVIL PROCEDURE. Plaintiff has not submitted a proposed amended complaint that complies with Rules 8, 10, and 11 of the FEDERAL RULES OF CIVIL PROCEDURE which govern the fundamental requirements concerning the proper form and content of a complaint.
Moreover, it is patently clear that the plaintiff has not articulated a viable legal claim against the State of Tennessee that is cognizable under federal law. This Court is not required to allow the plaintiff to amend his complaint to join the State of Tennessee as a defendant if the plaintiff fails to state a claim upon which relief can be granted and the proposed amendment would be futile.
The Court recognizes that the State of Tennessee generally has sovereign immunity, i.e., immunity from suit in federal court, under the Eleventh Amendment to the United States Constitution. Idaho v. Couer d'Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997); Thiokol Corp. v. Department of Treasury, 987 F.2d 376, 381 (6th Cir. 1993). The Eleventh Amendment applies to suits in both law and equity. It necessarily encompasses all demands for relief directly against the States including compensatory damages, declaratory judgments, and injunctive relief. Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 98-101 (1984); Cox v. Kentucky Dept. of Transportation, 53 F.3d 146, 152 n. 2 (6th Cir. 1995); Thiokol Corp., 987 F.2d at 381. Plaintiff has not demonstrated that he has any plausible theory to surmount and jump the daunting hurdle of the State of Tennessee's constitutional right of sovereign immunity guaranteed by the Eleventh Amendment.
Accordingly, the Court holds that at this juncture the State of Tennessee, Department of Human Services, Child Support Services has not been joined as a defendant in the case. There is no complaint pending against the State of Tennessee, Department of Human Services, Child Support Services. If the plaintiff desires to join the State of Tennessee, Department of Human Services, Child Support Services as a defendant, he must comply with Rule 15(a) of the FEDERAL RULES OF CIVIL PROCEDURE and make a motion for leave to amend his complaint. To persuade the Court that such an amendment is appropriate pursuant to Rule 15(a) and is not futile, the plaintiff is required to do the following: (1) submit a proposed amended complaint expressly naming the State of Tennessee, Department of Human Services, Child Support Services as a defendant; (2) the proposed amended complaint shall comply with Rules 8, 10, and 11 of the FEDERAL RULES OF CIVIL PROCEDURE; (3) the proposed amended complaint shall clearly state the precise basis under federal statutes for invoking this Court's subject matter jurisdiction; (4) plaintiff shall state a viable, nonfrivolous claim against the State of Tennessee upon which relief can be granted that would survive a motion to dismiss brought under Rule 12(b)(6) of the FEDERAL RULES OF CIVIL PROCEDURE; and (5) plaintiff shall make a preliminary showing of a plausible theory under the law that the State of Tennessee does not have an Eleventh Amendment right of sovereign immunity with regard to the plaintiff's specific claim or claims.
III. Plaintiff's Demand For Judgment [Court File No. 13]
On November 1, 2004, the plaintiff filed a motion captioned "Demand For Judgment." [Court File No. 13]. Plaintiff moves the Court to enter judgment against: (1) Brenda Centers; (2) Gregory Brown; (3) United States of America, Department of the Treasury, Internal Revenue Service; and (4) State of Tennessee, Department of Human Services, Child Support Services. The Court treats this as a motion for summary judgment pursuant to Rule 56 of the FEDERAL RULES OF CIVIL PROCEDURE.
The plaintiff's motion for summary judgment [Court File No. 13] is DENIED. The motion is, to say the least, extremely premature. Plaintiff is not entitled to summary judgment against Gregg Brown (Gregory Brown) and the IRS because the plaintiff has not effected service of process upon these two defendants pursuant to Rule 4 of the FEDERAL RULES OF CIVIL PROCEDURE. The Court cannot grant summary judgment against defendants who have not been served with process. The Court expresses no opinion whether the plaintiff may have any meritorious claims against Gregg Brown and the IRS. It is unnecessary for the Court to reach and adjudicate the plaintiff's claims against Gregg Brown and the IRS because there is insufficient service of process.
Plaintiff is not entitled to summary judgment against the State of Tennessee, Department of Human Services, Child Support Services because it has not been joined as a defendant in this action. Plaintiff has not filed an amended complaint against the State of Tennessee, Department of Human Services, Child Support Services and has not effected service of process upon it. Plaintiff prematurely demands summary judgment against the State of Tennessee before he has even filed an amended complaint and effected service of process.
Plaintiff is not entitled to summary judgment against Brenda Centers. As discussed infra, the plaintiff subsequently filed a different motion on November 4, 2004, to voluntarily dismiss his complaint against Brenda Centers under FED. R. CIV. P. 41(a). [Court File No. 15]. The Court is dismissing the plaintiff's complaint against Brenda Centers with prejudice pursuant to FED. R. CIV. P. 41(a)(2).
IV. Motion To Voluntarily Dismiss Complaint [Court File No. 15]
On November 4, 2004, the plaintiff filed a motion captioned "Motion to Withdraw Complaint." [Court File No. 15]. This is the most recent motion filed by the plaintiff. The motion cites FED. R. CIV. P. 41(a) and is a direct result of the order entered by this Court on October 18, 2004. [Court File No. 12]. The Court treats this motion as one for voluntary dismissal of the complaint against defendant Brenda Centers under Rule 41(a).
The motion lists only defendant Brenda Centers in the style of the case, and it does not list the other defendants, Gregg Brown and the IRS. The name "Gregory" is handwritten on the motion but it has marked or scratched out in ink by the plaintiff. The Court construes this to mean that the plaintiff is moving under FED. R. CIV. P. 41(a)(2) to voluntarily dismiss his complaint only against Brenda Centers. This motion is GRANTED and the plaintiff's complaint against defendant Brenda Lee Centers is hereby DISMISSED WITH PREJUDICE pursuant to FED. R. CIV. P. 41(a)(2).
It is not clear from the motion whether the plaintiff also wants to voluntarily dismiss his complaint against defendants Gregg Brown and the IRS pursuant to FED. R. CIV. P. 41(a). In the absence of a proper motion from the plaintiff that clearly and unequivocally states his intent to voluntarily dismiss his complaint against Gregg Brown and the IRS, they shall remain as defendants in this case at the present time. If the plaintiff desires to make a motion for voluntary dismissal of his complaint against defendants Gregg Brown and the IRS, then the plaintiff may file another motion to dismiss under Rule 41(a) to clarify his intentions.
V. Lack of Timely Service of Process Under Fed.R.Civ.P. 4(m)
The record shows that the plaintiff has not effected service of process upon defendants Gregg Brown and the IRS within the 120-day time limit provided in FED. R. CIV. P. 4(m). On or before December 3, 2004, the plaintiff shall file a response and show good cause why his complaint against defendants Gregg Brown and the IRS should not be dismissed without prejudice under FED. R. CIV. P. 4(m) for failure to timely effect service of process. If the plaintiff fails to respond or fails to show good cause, his complaint against defendants Gregg Brown and the IRS will be dismissed without prejudice.
SO ORDERED.