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Reynolds v. United States

United States District Court, D. Idaho

November 21, 2018

DAVID D. REYNOLDS, Plaintiff,
v.
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)

          RONALD E. BUSH CHIEF U.S. MAGISTRATE JUDGE

         Now 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).

         In light of Williams, the undersigned submits the following Report and Recommendation to the assigned District Judge:

         REPORT AND RECOMMENDATION

         A. Background

         Plaintiff 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 83712.

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).

         On 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).

         In an 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.”).

         On 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. No. 10).

         B. ...


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