Waddell v. Meyer ( 2020 )

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 WAYNE D. WADDELL, Case No. 1:19-cv-00789-LJO-SKO 14 Plaintiff, ORDER RE STATUS OF SERVICE 15 v. (Docs. 14, 15, 16) 16 CONRAD V. MEYER, Acting Director, Army Board for Correction of Military Records, 17 Defendant. 18 _____________________________________/ 19 I. BACKGROUND 20 Plaintiff filed this case on June 6, 2019 under 10 U.S.C. § 1552, requesting that the Secretary 21 of the Army correct Plaintiff’s military records. (Doc. 2.) Plaintiff alleges he is entitled to an 22 award of the Army Air Medal and requests that Defendant issue him the award. (See id. at 4–5.) 23 24 The case was set for a scheduling conference on December 12, 2019. (Doc. 7.) Defendant 25 has not yet appeared in the case. (See Docket.) On October 25, 2019, Plaintiff filed proof of service 26 on Defendant. (Doc. 12.) The proof of service indicated that on September 26, 2019, service was 27 attempted on Defendant at 1901 South Bell Street, 2nd Floor, Arlington, Virginia, but was 28 1 2 the Eastern District of California or the Attorney General of the United States were served. See 3 Fed. R. Civ. P. 4(i). Thus, the Court continued the scheduling conference and directed Plaintiff to 4 re-serve Defendant in accordance with Rule 4. (Doc. 13.) 5 Plaintiff filed proofs of service on December 12, 2019, and December 19, 2019, and filed a 6 status report on December 19, 2019. (Docs. 14, 15, 16.) The proof of service filed on December 7 12, 2019, states that Plaintiff himself mailed the summons and complaint to the United States 8 Attorney’s Office at 2500 Tulare Street, Suite 4401, Fresno, California. (Doc. 14.) The return of 9 10 service is signed by Plaintiff. (Id.) The proof of service filed on December 19, 2019, consists of 11 three copies of the same proof of service stating that Plaintiff himself mailed, by certified mail, the 12 summons and complaint to Defendant at 1901 South Bell Street, 2nd Floor, Arlington, Virginia. 13 (Doc. 16.) The proof of service is again signed by Plaintiff. (Id.) 14 The status report states that Plaintiff has had difficulty locating Defendant because the final 15 denial letter he received at the agency level did not list an address for Defendant or tell Plaintiff in 16 which court he should file his lawsuit. (Doc. 15 at 2.) The status report also includes certified mail 17 18 receipts addressed to Defendant at 1901 South Bell Street, 2nd Floor, Arlington, Virginia, “Office 19 of the Clerk” at 2500 Tulare Street, Fresno, California, and the United States Attorney’s Office at 20 2500 Tulare Street, Fresno, California. (Id. at 5–6.) 21 II. DISCUSSION 22 Plaintiff did not properly effect service for two reasons: (1) Plaintiff did not effect service 23 on the Attorney General of the United States, and (2) Plaintiff personally served Defendant and the 24 25 United States Attorney’s Office and mailed the summons and complaint to them, as opposed to 26 serving them through someone else, such as a legal process server, as required by Rule 4. Thus, 27 the Court will provide Plaintiff with further explanation of the requirements of the Rule and direct 28 1 2 corporation, officer or employee of the United States sued in an official capacity, as in this case, “a 3 party must serve the United States and also send a copy of the summons and of the complaint by 4 registered or certified mail to the agency, corporation, officer, or employee.” Fed. R. Civ. P. 4(i)(2). 5 Regarding service on the United States, Rule 4 provides: 6 To serve the United states, a party must: 7 (A)(i) deliver a copy of the summons and of the complaint to the United 8 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 9 designates in a writing filed with the court clerk—or 10 (ii) send a copy of each by registered or certified mail to the civil-process 11 clerk at the United States attorney’s office; 12 (B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and 13 14 (C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency 15 or officer. 16 Fed. R. Civ. P. 4(i)(1). Thus, to properly effect service on Defendant in this case, Plaintiff must 17 send “a copy of the summons and of the complaint by registered or certified mail” to Defendant as 18 set forth in Rule 4(i)(2), and must also effect service of the summons and of the complaint on the 19 United States by serving the United States Attorney’s Office for the Eastern District of California 20 21 and the Attorney General of the United States as set forth in Rule 4(i)(1). 22 Regarding service of process generally, Rule 4 states, in relevant part: 23 (1) In General. A summons must be served with a copy of the complaint. The Plaintiff is responsible for having the summons and complaint served within the time 24 allowed by Rule 4(m) and must furnish the necessary copies to the person who makes 25 service. 26 (2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint. 27 28 1 2 served,” the summons and complaint must be actually served by someone who is “not a party.” See 3 Fed. R. Civ. P. 4(c).1 4 Accordingly, because Plaintiff failed to serve the Attorney General of the United States, and 5 because Plaintiff served the summons and complaint himself—as opposed to serving the summons 6 and complaint through someone else, such as a legal process server—service of process was not 7 proper. 8 III. CONCLUSION AND ORDER 9 10 IT IS THEREFORE ORDERED that Plaintiff shall effect service on Defendant in 11 accordance with the requirements of Rule 4 and file proof of service by no later than February 3, 12 2020. 13 14 IT IS SO ORDERED. 15 Sheila K. Oberto 16 Dated: January 2, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 1 The Court advises Plaintiff that although he is proceeding pro se, “he is obligated to familiarize himself with the Federal Rules of Civil Procedure and Eastern District of California Local Rules.” See U.S. v. Molen, 27 No. 2:10-cv-02591 MCE KJN PS, 2012 WL 5940383, at *1 (E.D. Cal. Nov. 27, 2012). Local Rule 183 28 provides that failure to comply with the Federal Rules of Civil Procedure or the Local Rules may result in