Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 C. Miles et. al., 12 Defendants. 13 14 Pending before the Court is Plaintiff's Motion for Clarification, Correction and to File 15 a Challenge regarding the service on Defendant Scalet. Plaintiff alleges that Scalet was 16 properly served on July 19, 2004, when Jacque Hahn signed a certified mail acceptance of 17 service for Defendant Scalet (Doc. #51). In support of his argument, Plaintiff cites Federal 18 Rules of Civil Procedure 4(i)(1) and 4(3)(B). 19 The very rules Plaintiff cites show that service on Jacque Hahn alone was insufficient 20 service in this case. To serve an employee of the United States, Plaintiff must serve: 1. the 21 United States attorney in the district where the action is brought (4(i)(2)(B) incorporating 22 4(i)(1)(A)); 2. the Attorney General in Washington (4(i)(2)(B) incorporating 4(i)(1)(B)) and 23 24 Clearly service by certified mail on Jacque Hahn of the Department of Homeland 25 Security does not accomplish all three methods of service required in this case. Plaintiff 26 27 28 4(f) deals with individuals in a foreign country, and 4(g) deals with infants and incompetent persons, so only 4(e) would be relevant in this case.
Case 2:03-cv-01819-JAT Document 184 Filed 04/27/2006 Page 1 of 3
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Carlos Arthur Powell, Plaintiff, vs.

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No. CV 03-1819-PHX-JAT ORDER

3. the employee himself in a manner consistent with 4(e), 4(f) or 4(g).1

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appears to argue that service on Jacque Hahn did accomplish service on Defendant himself pursuant to Rule 4(e). On this record, the Court cannot determine whether Jacque Hahn could be considered "an agent authorized by appointment or by law to received service of process" for Defendant Scalet. However, the Court need not decide this issue, because even if service on Hahn was sufficient for one of the three services required, as stated above, it was not sufficient for all three. Therefore, Plaintiff's motion will be denied in all respect. The Court now turns to the outstanding issue of service of Scalet in this case. As discussed above, to properly service Scalet, Plaintiff would have had to return three service packets with respect to Scalet to be forwarded to the Marshal's for service. From the record, the Court cannot determine whether Plaintiff sent back sufficient service packets, with appropriate addresses, to actually accomplish service on Scalet.2 What the Court can determine is that service on the local United States Attorney (by the method proscribed in Rule 4(i)(1)(A)) and the United States Attorney General (by the method proscribed in Rule 4(i)(1)(B)) has not been accomplished. Accordingly, IT IS ORDERED that the Clerk of the Court shall send two additional service packets to Plaintiff; IT IS FURTHER ORDERED that Plaintiff shall complete those service packets as to Defendant Scalet to accomplish service and return those services packets, completed, back to the Clerk of Court within 10 days of the date of this Order; IT IS FURTHER ORDERED that upon receipt the Clerk of the Court shall forward those service packets to the Marshals;

With respect to personal service on Scalet under Rule 4, the Court has gone to extraordinary measures to obtain an address for Scalet and have the Marshals serve Scalet. That service has now been accomplished (Doc. #182). Therefore, the Court again need not determine whether service on Hahn was sufficient because that part of the three parts required for service has now undisputable been accomplished on Scalet himself. -2Case 2:03-cv-01819-JAT Document 184 Filed 04/27/2006 Page 2 of 3

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IT IS FURTHER ORDERED that due to the age of this case and what appears to be Plaintiff's prior failure to take all steps necessary to accomplish service, if the service packets are not timely returned, or if they are improperly completed, or if Plaintiff moves to reconsider or modify this Order in any way rather than proceeding forward as ordered by this Court, Defendant Scalet will be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with orders of this Court and failure to prosecute; IT IS FURTHER ORDERED that Plaintiff's Motion (Doc. #183) is denied; and IT IS FURTHER ORDERED that pending the Court's ruling on the other Defendants' motion for summary judgment, the August 8, 2006, trial date is vacated. DATED this 26th day of April, 2006.

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