Opinion
CIVIL ACTION NO. 2:06mc3329-WKW (WO).
February 2, 2007
ORDER
On July 13, 2006, petitioner filed the present action seeking to quash summons issued by Special Agent Larry J. Ellis of the Criminal Investigation Division of the Internal Revenue Service seeking records pertaining to plaintiff and served on various organizations. Petitioner contends that the summons are due to be quashed because, inter alia, the records sought were the subject of motions to quash in then-pending actions in this court.
On August 25, 2006, this court dismissed one of those actions — William D. Paul v. United States, Civil Action No. 2:06mc3292-WKW — because of plaintiff's failure to effect service on the United States within the 120 days allowed by Fed.R.Civ.P. 4(m). In that action, the United States argued that this court lacked personal jurisdiction over it because the petitioner failed to serve process in the manner set forth in Fed.R.Civ.P. 4(i). The court's order granting the motion to dismiss — like the government's motion — specifically advised plaintiff of the requirements of that rule:
(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.
(Order on Motion to Dismiss in Civil Action No. 2:06mc3292-WKW, Doc. # 8) (quoting Fed.R.Civ.P. 4(i)).
The court's docket in the present case likewise reveals that petitioner has not effected service in the manner set forth in Rule 4(i). (See Plaintiff's certificate of service, Doc. # 1, p. 5) (reflecting service on United States by serving Special Agent Ellis and an Assistant United States Attorney by "depositing a copy of the same in the U.S. Mail, postage prepaid"). On November 29, 2006, the court entered an order directing the plaintiff to show cause why this action should not be dismissed for failure to effect service on the United States within 120 days as required by Fed.R.Civ.P. 4(m). Petitioner responds only that he served a copy of his pleading on the Assistant United States Attorney and Special Agent Ellis "by depositing a copy of the same in the U.S. Mail, postage prepaid." (Doc. # 4).
This is the same response plaintiff provided in the previous action. It was insufficient in that case, as plaintiff was advised in the court's order granting the motion to dismiss.
Service on Agent Ellis and AUSA Neeley by first class mail does not comport with Rule 4(i) and is insufficient to confer jurisdiction on the United States. "'Failure to properly serve the United States deprives the court of personal jurisdiction. . . . A jurisdictional defect of this sort is fatal to maintenance of an action.'" Holmstrom v. United States, 2003 WL 21254624, *2 (M.D. Fla. Apr. 4, 2003) (quoting Thompson v. Internal Revenue Service, 23 F. Supp.2d 923, 924 (N.D. Ind. 1998)).
Additionally, petitioner has not shown good cause for extension of the 120-day period of time for service under Rule 4(m). Petitioner was first advised of the requirements for service on the United States on April 27, 2006, when the government filed its motion to dismiss in petitioner's earlier case, over two months before plaintiff commenced this action. Plaintiff was again advised of these requirements on August 25, 2006 — six weeks after he filed the present motion to quash — when the court entered its order and judgment dismissing the previous petition for defective service. Despite this notice and the show cause order entered on November 29, 2006 in this case, petitioner has failed to take the appropriate corrective action. See Flory v. United States, 79 F.3d 24 (5th Cir. 1996) (affirming district court's dismissal of action against the United States because of plaintiff's failure to serve the Attorney General).
Because petitioner has not produced evidence that he has properly served the required parties, this action is due to be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m) for failure to effect service on the United States within 120 days. A separate judgment will be entered.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1 365 1 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc., 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing: Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal: See also 3pro se 4. Effect of a notice of appeal: 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , 368 (11th Ci r. 1 983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).