United States District Court, D. Idaho
REPORT AND RECOMMENDATION
CANDY W. DALE, Magistrate Judge.
Before the Court is the motion to dismiss filed on February 12, 2014, by Defendants Christopher E. Caldwell, and Whitehead, Amberson & Caldwell, PLLC (the Caldwell Defendants), (Dkt. 13), which has been referred to the undersigned by District Judge Lodge (Dkt. 42). Although Defendant Ronda K. Nichols (Nichols) does not appear from the title of the motion to be moving for dismissal, she is included in the scope of the motion by the Caldwell Defendants, because of her status as an employee of Whitehead, Amberson & Caldwell, and the same attorney representing the Caldwell Defendants has made an appearance on behalf of Nichols. Therefore, the Court includes Defendant Nichols in the scope of the motion.
Pro se Plaintiff Robert James McCormack's complaint against the Caldwell Defendants and Nichols alleges negligence, forgery, fraud, and malpractice relating to a workers compensation claim Plaintiff pursued before the Idaho Industrial Commission (IIC). (Dkt. 2 at 2.) The Caldwell Defendants undertook legal representation of Plaintiff before the IIC. ( Id. at 5.) This case is the fifth legal action filed by Plaintiff against the Caldwell Defendants and the second action filed against Nichols.
Plaintiff's complaint as to the Caldwell Defendants and Nichols is subject to dismissal, as the Court lacks subject matter jurisdiction over this action.
1. Factual History
Plaintiff filed his first action against Defendant Christopher Caldwell alleging negligence in the District Court of the Second Judicial District, in and for Nez Perce County on January 28, 2008 (CV08-00736). (Dkt. 13-3 at 2, 3.) The State district court dismissed the action on April 13, 2009, for insufficient service of process. ( Id. at 13.)
On June 8, 2009, Plaintiff filed a second action in the District Court of the Second Judicial District, in and for Nez Perce County (CV09-01218) against the Caldwell Defendants, alleging forgery, fraud, negligence, and mishandling of Plaintiff's total temporary disability checks. (Dkt. 13-4.) The state court dismissed the second action finding Plaintiff's action barred by the applicable statute of limitations. ( Id. at 67.) Plaintiff appealed the order of dismissal to the Idaho Court of Appeals on March 8, 2011. (Dkt. 13-2 at 7.) On July 1, 2011, the Court of Appeals affirmed the dismissal, finding Plaintiff's complaint against the Caldwell Defendants time barred. ( Id. )
On March 24, 2010, Plaintiff filed a third action against Defendant Whitehead, Amberson & Caldwell, PLLC, in this Court, alleging fraud (1:10-CV-0157-MHW). (Dkt. 13-5.) The Court dismissed that matter on October 28, 2010, on jurisdictional grounds without prejudice. (Dkt. 13-5 at 6).
Plaintiff filed his fourth action against the Caldwell Defendants and Nichols on June 18, 2012, in this Court (1:11 CV-00599-BLW). (Dkt. 13-6 at 2.) The action alleged fraud, negligence, and malpractice against the Caldwell Defendants and Nichols. ( Id. ) On December 21, 2012, the Court dismissed the action without further opportunity to amend, finding that the Court lacked jurisdiction over the matter. ( Id. at 32.) Plaintiff appealed the Order to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit affirmed the Court's judgment dismissing Plaintiff's case. ( Id. at 43.)
2. Procedural History
On July 22, 2013, Plaintiff filed the present complaint against the Caldwell Defendants and Nichols, among others, and a motion to proceed in forma pauperis. (Dkt. 1, 2.) The Clerk of the Court conditionally filed Plaintiff's Complaint on July 25, 2013. (Dkt. 4.) On October 8, 2013, the Court directed Plaintiff to either pay the filing fee or file a new in forma pauperis application using the proper form. (Dkt. 7.) Plaintiff paid the filing fee on October 25, 2013. (Dkt. 8.) The Court found Plaintiff's application for in forma pauperis moot on October 28, 2013. (Dkt. 9.) The Court informed Plaintiff that he was responsible for effecting service within 120 days of the October 28 Order pursuant to Fed.R.Civ.P. 4. (Dkt. 9 at 2.) Rule 4(m) required the Plaintiff to effect service on all defendants by February 25, 2014.
On January 27, 2014, the Clerk of the Court issued summonses for all thirty-five Defendants. (Dkt. 11.) The Caldwell Defendants filed a Motion to Dismiss on February 12, 2014, arguing that the Court lacks jurisdiction over the matter, process in the matter was insufficient, and Plaintiff failed to state a claim for which relief could be granted. (Dkt. 13.)
On February 20, 2014, Plaintiff filed a motion requesting 120 additional days to effect service. (Dkt. 15.) On March 5, 2014, the Court granted in part and denied in part Plaintiff's Motion for Extension of Time, instead allowing Plaintiff an extra 60 days ...