Opinion
Case No: 8:05-cv-1281-T-26MSS.
August 10, 2006
ORDER
Before the Court is Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment. Although the Court directed Plaintiff to respond, the Court now concludes that a response is unnecessary because Defendant's argument that the United States Attorney was not properly served is borne out by the record.
Defendant once again mounts the argument that Plaintiff has failed to effect proper service of process in that she addressed the summons and the certified mail to the United States Attorney and not his civil process clerk as required by Rule 4(i)(1)(A), Federal Rules of Civil Procedure. Because the record supports this contention, the Court lacks personal jurisdiction over Defendant, see Attwell v. LaSalle Nat'l Bank, 607 F. 2d 1157, 1159 (5th Cir. 1980) and must, therefore, dismiss for insufficiency of service of process. See Holmstrom v. United States, 2003 WL 21254624 (M.D. Fla. 2003); accord Sun v. United States, 342 F. Supp. 2d 1120, 1123 (N.D. Ga. 2004), affirmed 151 Fed. Appx. 860 (11th Cir. 2005).
See docket 16, page 3 and docket 21-2, page 5.
The Court notes, however, that Plaintiff is now represented by counsel. Consequently, the Court will allow counsel an opportunity to file an amended complaint and to effect proper service on the Defendant as required by Rule 4.
Accordingly, it is ordered and adjudged as follows:
1) Defendant's Motion to Dismiss (Dkt. 23) is granted.
2) Defendant's Alternative Motion for Summary Judgment (Dkt. 23) is denied as moot.
3) Plaintiff shall file an amended complaint within 10 days.
4) Plaintiff shall effect proper service on Defendant and file proof to that effect on or before October 9, 2006.
DONE AND ORDERED.