Opinion
CASE NO. 8:03-CV-660-T-17EAJ
July 10, 2003
ORDER ON MOTION TO DISMISS
This cause is before the Court on Defendant's motion to dismiss, filed June 9, 2003 (Doc. Nos. 4-5), Plaintiff's response thereto, filed June 18, 2003 (Doc. No. 7), and Defendant's reply filed July 7, 2003 (Doc. No. 8). Defendant, the United States of America, on behalf of its agency, the Internal Revenue Service ("IRS"), asks that the action filed by Plaintiff, Walter J. Lawrence, be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process under Rules 4(i)(1) (2).
STATEMENT OF FACTS
The initial complaint in this action was filed pro se by Plaintiff on April 11, 2003. Plaintiff alleged that, pursuant to Plaintiff's written request of February 10, 2003, Defendant, IRS, failed to provide requested agency created documents in violation of the Freedom of Information Act. Also on April 11, 2003, Plaintiff sent a copy of the complaint, summons, and demand for jury trial to the United States Attorney for the Middle District of Florida and the Attorney General of the United States at Washington, District of Columbia by first class certified mail. (Doc. No. 2).
In his response, Plaintiff admits to not notifying the IRS of his complaint. (Doc. No. 7). However, Plaintiff asserts that he mailed a copy of the summons and of the complaint by first class certified mail to the attorney on record for the IRS on June 18, 2003. Plaintiff has not filed documentation of this mailing with the Court. Plaintiff claims that he did not file the copy with the IRS previously because the IRS did not have an attorney on record.
Defendant, IRS, contends that Plaintiff failed to properly serve the United States Attorney for the Middle District of Florida and failed to serve a summons and complaint on the IRS, pursuant to Fed.R.Civ.P. Rules 12(b)(5) and Rule 4(i). (Doc. Nos. 4-5).
LEGAL ANALYSIS
Fed.R.Civ.P. Rule 4 sets out the requirements for service in a case against an agency of the United States. Pursuant to Rule 4(i), Plaintiff was required to serve a copy of the summons and complaint on: (1) the United States Attorney for the Middle District of Florida; (2) the Attorney General of the United States at Washington, District of Columbia; and (3) the IRS.
Rule 4(i) delineates the rules for service upon the United States, and its agencies, corporations, or officers:
(1) 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 the court or by sending a copy of the summons and of the 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 or certified mail to the Attorney General of the United States at Washington, District of Columbia, and (C) in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to the officer or agency.)
(2) Service upon an officer, agency, or corporation of the United States, shall be effected by serving the United States in the manner prescribed by paragraph (1) of this subdivision and by also sending a copy of the summons and of the complaint by registered or certified mail to the officer, agency, or corporation.
(3) The court shall allow a reasonable time to serve process under Rule 4(i) for the purpose of curing the failure to serve: (A) multiple officers, agencies, or corporations of the United States if the plaintiff has effected service on either the United States attorney or the Attorney General of the United States.
Failure Under Rule 4(i)(1)(A)
Rule 4(i)(1)(A) states, in relevant part, that "service upon the United States attorney for the district must be made by sending a copy of the summons and of the complaint by certified mail addressed to the civil process clerk at the office of the United States attorney." The authorized mail service must be addressed to the civil process clerk in order to assure proper handling of mail in the Unites States Attorney's office.
In the present case, Plaintiff did not properly serve the Office of the United States Attorney for the Middle District of Florida when he sent copies of the summons and of the complaint by certified mail because Plaintiff addressed the copies to the Attorney and not to the civil process clerk. Plaintiff has not provided proof to the Court that he has rectified this situation nor does Plaintiff rebut this assertion in his response. Therefore, as of the date of this Order, the Court has not acquired personal jurisdiction over Defendant.
Failure Under Rule 4(i)(2)(A)
Additionally, Plaintiff failed to serve the IRS pursuant to Rule 4(i)(2)(A). Plaintiff admitted this failure to notify in his response. (Doc. No. 7). Rule 4(i)(2)(A) does not require the necessary copies to be sent to the attorney for the IRS but rather to the agency itself. It follows that Plaintiff's excuse for failure to deliver due to a lack of knowledge of the attorney for the IRS is irrelevant.
However, under Rule 4(i)(3)(A), the court shall allow a reasonable time for service of process for the purpose of curing the failure to serve all persons required to be served in an action governed by Rule 4(i)(2)(A), if the plaintiff has served either the United States Attorney or the Attorney General of the United States. Plaintiff did send proper notice, pursuant to Rule 4(i)(1)(B), to the Attorney General of the United States. As a result, Plaintiff is allowed a reasonable time to correct his error. Plaintiff asserts in his response that he has now served notice properly on the IRS. Nevertheless, Plaintiff is in violation of Rule 4(1), in that he has failed to provide to this Court proof of service on the IRS. This does not affect the validity of the service and may be amended. Accordingly, it is
ORDERED that Defendant's Motion to Dismiss (Doc. 4), filed June 9, 2003, be DENIED and Plaintiff shall have 30 days from the date of this Order to correct his errors and properly effect service on the Defendant.