United States District Court, D. Idaho
DAVID D. REYNOLDS, Plaintiff,
UNITED STATES OF AMERICA, Defendant,
ORDER OF REASSIGNMENT AND REPORT AND RECOMMENDATION
RE: DEFENDANT UNITED STATES OF AMERICA'S MOTION TO
DISMISS (DOCKET NO. 6)
E. BUSH CHIEF U.S. MAGISTRATE JUDGE
pending before the Court is Defendant United States of
America's Motion to Dismiss (Dkt. No. 6). Because not all
named parties have consented to the jurisdiction of a United
States Magistrate Judge to conduct all proceedings in this
case in accordance with 28 U.S.C. § 636(c) and/or FRCP
73, IT IS HEREBY ORDERED that this case be REASSIGNED to a
United States District Judge to consider whether the action
should be dismissed pursuant to FRCP 4(m). See Williams
v. King, 875 F.3d 500 (9th Cir. 2017).
light of Williams, the undersigned submits the
following Report and Recommendation to the assigned District
initiated this action on July 10, 2018, and on July 18, 2018,
the Clerk of Court issued a summons. See Compl.
& Summons. (Dkt. Nos. 1 & 2). On August 30, 2018,
Plaintiff filed a “Status Report on Service of
Process” pursuant to Local Civil Rule 4.1, stating:
“Service of the Summons and Complaint was submitted to
a third party process server and service was effectuated upon
Defendant on August 24, 2018” and “Plaintiff has
not yet received the notarized Proof of Service for filing
from the third party process server.” Pl.'s Status
Rpt. (Dkt. No. 3). Later that day, Plaintiff filed an
Affidavit of Service completed by Tri-County Process Serving
LLC, stating in part:
Received by Tri-County Process Serving LLC on August 24, 2018
to be served on UNITED STATES OF AMERICA.
I, Kasey L. Vink, who being duly sworn, depose and say that
on Friday, August 24, 2018 at 1:35 PM, I:
SERVED the within named United
States of America by delivering a true copy of the
Summons in a Civil Action, Complaint and Demand for
Jury Trial to Jessica Black, Paralegal, a person
authorized to accept service on behalf of United States of
America. Said service was effected at U.S.
Attorney's Office, 800 Park Blvd., Ste. 600, Boise, ID
Aff. of Serv. (Dkt. No. 5) (emphasis in original). On August
31, 2018, the U.S. Attorney's Office for the District of
Idaho received a letter from Plaintiff's counsel
enclosing a copy of the Summons and Complaint in this case.
See Ex. 1 to Schaefer Decl. (Dkt. No. 6-3).
October 23, 2018, Defendant moved to dismiss Plaintiff's
Complaint for lack of personal jurisdiction, arguing that
Plaintiff has not properly served the United States. See
generally Def.'s MTD (Dkt. No. 6). Specifically,
Defendant contends that Plaintiff failed to timely serve a
copy of the Summons and Complaint upon both the U.S. Attorney
for the District of Idaho and the U.S. Attorney
General in Washington, D.C pursuant to Rule 4 of the Federal
Rules of Civil Procedure. See Def.'s Mem. in
Supp. of MTD, p. 3 (Dkt. No. 6-1).
apparent response to Defendant's arguments, on October
23, 2018, Plaintiff filed a second “Status Report on
Service of Process, ” confirming that (1) the U.S.
Attorney for the District of Idaho was served on August 24,
2018, and (2) copies of the Summons and Complaint were mailed
to the U.S. Attorney General in Washington, D.C. and to the
Office of the Judge Advocate General of the Army on October
23, 2018. See Pl.'s Status Rpt. (Dkt. No. 7).
The next day, Plaintiff confirmed that such notice was sent
via certified mail. See Pl.'s Am. Status Rpt.
(Dkt. No. 8). On October 26, 2018, Plaintiff formally opposed
Defendant's Motion, requesting that, pursuant to Rule
4(m), the Court order that service be made within a specified
time (already corrected/accomplished) and, further noting
that, even if the Court were to dismiss the Complaint without
prejudice, Plaintiff would nonetheless be able to re-file
prior to December 4, 2018. See Pl.'s Opp. to
MTD, pp. 3-4 (Dkt. No. 9) (“In the interest of justice
and judicial economy, it makes sense for the Court to
exercise its discretion in ordering that service be made
within a specified time, instead of ordering the claim
dismissed without prejudice.”).
October 31, 2018, Defendant advised that Court that it would
not file a reply to Plaintiff's opposition to, and in
support of, its Motion. See Def.'s Notice (Dkt.