Evans v. United States of America

Brief / Memorandum in Support re MOTION to Dismiss .

W.D. Va.October 7, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA DANVILLE DIVISION SABRINIA E. EVANS, ) ) Plaintiff, ) ) v. ) Civil Action No. 4:16-CV-00020 ) UNITED STATES OF AMERICA, ) ) Defendant. ) MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS The Defendant, United States of America, by counsel, Kartic Padmanabhan, Assistant United States Attorney, has moved this Court for dismissal of this action pursuant to Federal Rules of Civil Procedure 4(m) and 12(b)(5) for insufficient service of process. See ECF 7. The United States now submits this memorandum in support of that motion.1 1. On May 3, 2016, the Plaintiff filed the complaint in the above-styled case (ECF 1). 2. On June 20, 2016, a summons was issued and directed to the United States of America, c/o John P. Fishwick, Jr., United States Attorney, United States Attorney’s Office, Roanoke, Virginia (ECF 3). 1 The allegations in the memorandum are substantially similar to those contained in the Defendant’s Motion to Dismiss. However, in order to fully comply with this Court’s Pretrial Order (ECF 9), requiring all motions to be supported by a brief, the United States submits the instant brief. The only substantive changes between this pleading and the previously filed Motion to Dismiss appear in paragraph 11. Case 4:16-cv-00020-JLK-RSB Document 22 Filed 10/07/16 Page 1 of 4 Pageid#: 88 2 3. On July 12, 2016, the Court issued a notice to the Plaintiff advising that she had until August 1, 2016 to notify the Court that service had been accomplished on the Defendant (ECF 4). 4. On July 13, 2016, the Plaintiff returned a copy of the summons previously issued to the Court with a handwritten note by Plaintiff’s counsel stating “I personally mailed by certified mail the summons & complaint to U.S. Attorney Fishwick at his last-known address. Copy of mailing attached.” (ECF 5). 5. On July 15, 2016, the U.S. Attorney’s Office received a copy of the summons and complaint via certified mail from Plaintiff’s counsel. 6. On July 19, 2016, the Defendant sent a letter to Plaintiff’s counsel advising that he failed to effect proper service and directing him to Federal Rule of Civil Procedure 4(i). A copy of this letter was docketed with the Court (ECF 6). 7. On July 19, 2016, the Defendant received an e-mail from the Plaintiff’s counsel stating that he had received the Defendant’s letter and would correct service. See ECF 7-1. 8. On July 21, 2016, a second copy of the summons and complaint was served on the United States Attorney’s Office thru one of its designated civil process clerks, Paralegal Nancy Withers. 9. On July 22, 2016, a third copy of the summons and complaint was received by the U.S. Attorney’s Office via certified mail from Plaintiff’s counsel. 10. Rule 4(i)(1) states that: “To serve the United States, a party must: (A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought-or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk-or Case 4:16-cv-00020-JLK-RSB Document 22 Filed 10/07/16 Page 2 of 4 Pageid#: 89 3 (ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney’s office; (B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and (C) if the action challenges an order of a non-party agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer. 11. Plaintiff had until August 1, 2016 to perfect service on the Defendant and to file proof of service with the Court. On September 26, 2016, eight (8) weeks after the deadline to complete service on the United States had passed, and six (6) days after Defendant filed its Motion to Dismiss, Plaintiff finally requested a Summons for the Attorney General of the United States. See ECF 10. Plaintiff subsequently provided proof that the Attorney General was served on October 3, 2016, as required by Rule 4(i)(1)(B), nine (9) weeks after the deadline to do so, and eleven (11) weeks after being advised to do so by the Defendant. See ECF 7-1, 21. As outlined above, Defendant had attempted to resolve the service deficiencies with Plaintiff prior to the filing of its Motion to Dismiss, but those efforts were unsuccessful. Therefore, the Defendant respectfully asks the Court to dismiss this case. Respectfully submitted, JOHN P. FISHWICK, JR. United States Attorney Date: October 7, 2016 /s/ Kartic Padmanabhan Kartic Padmanabhan Assistant United States Attorney Virginia State Bar No. 74167 P. O. Box 1709 Roanoke, VA 24008-1709 Telephone: (540) 857-2250 Facsimile: (540) 857-2283 E-mail: kartic.padmanabhan@usdoj.gov Case 4:16-cv-00020-JLK-RSB Document 22 Filed 10/07/16 Page 3 of 4 Pageid#: 90 4 CERTIFICATE OF SERVICE I hereby certify that on October 7, 2016, I filed the foregoing Memorandum in Support of Defendant’s Motion to Dismiss using the Court’s CM/ECF system, which will provide electronic notice to the following: Sidney H. Kirstein, Esquire 1319 C Enterprise Drive Lynchburg, VA 24502 /s/ Kartic Padmanabhan Kartic Padmanabhan Assistant United States Attorney Case 4:16-cv-00020-JLK-RSB Document 22 Filed 10/07/16 Page 4 of 4 Pageid#: 91