Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:O5—cv—OO789-KAJ Document 3-3 Filed O3/29/2006 Page1 0f3

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Not Reported in F.Supp. Page 1
Not Reported in F.Supp., 1994 WL 591556 (D.N.J.), 74 A.F.T.R.2d 94-5641
(Cite as: Not Reported in F.Supp.)
C 1994 Letter Order, plaintiffs were provided until
Briefs and Other Related Documents July 8, 1994 to submit opposition papers to the
Court. The Court's prior Letter Order further
United States District Court, D. New Jersey. informed the parties that any reply papers would be
Deborah R. FERNANDEZ, etal. due by July 15, 1994 and that thereafter, the Court
v. would decide the matter without oral argument. As
U.S.A., INTERNAL REVENUE SERVICE, etal. of the present date, July 20, 1994, no further
Civ. A. N0. 93-5378 (NHP). submissions have been received by the Court from
any of the parties. Accordingly, the Court will treat
July 20, 1994. defendant's motion as unopposed.
Pro se plaintiffs filed the instant Complaint on
Edward J. Femandez, Deborah R. Fernandez, Jaime December 2, 1993. Therein plaintiffs alleged, inter
S. Fernandez, Dana M. Fernandez, Renee A. alia, that defendant Internal Revenue Service
Fernandez, pro se. illegally taxed plaintiff Edward Fernandez's wages
Susan C. Cassell, Asst. U.S. Atty., Faith Hochberg, and denied him his rights under the tax laws. See
U.S. Atty., Newark, NJ, Richard L. Gilman, Tax Plaintiffs Complaint. Plaintiffs also named as
Div., U.S. Dept. of Justice, Washington, DC, for defendant National Freight Inc. asserting similar
defendant. allegations. National Freight, Inc. is not a party to
the instant motion.
POLITAN, District Judge.
*1 This matter comes before the Court on the Plaintiffs' Certificate of Service filed on March 16,
motion of defendant United States of America, on 1994 indicates that plaintiff served a Summons on
behalf of the Internal Revenue Service ("IRS"), to defendants Internal Revenue Service and National
dismiss plaintiffs' Complaint as against the IRS Freight, Inc. The Certificate of Service does not
pursuant to Federal Rules of Civil Procedure indicate if a copy of the Complaint was also served
12(b)(5) and 4(m). For the reasons expressed with the Summons. Furthermore, there is no proof
herein, defendant's motion is hereby GRANTED. in the file that plaintiffs served a copy of the
Summons and Complaint on the United States
The Court notes that this motion was originally attorney or his representative as required by
returnable on May 23, 1994. Prior to the return Fed.R.Civ.P. 4(i)(1)(A) and (i)(2). Nor is there any
date, the Court notified the parties that the motion proof that a copy of the Summons and Complaint
would be decided pursuant to Rule 78 of the was served on the Attorney General of the United
Federal Rules of Civil Procedure. In a Letter States at Washington, D.C. as required by
Opinion dated June 13, 1994, the Court indicated F€d_R_(jiv_l>_ 4(i)(l)(B) aud (i)(2) FN?
that the Certificate of Service attached to
defendant's Notice of Motion revealed that the Fed.R.Civ.P. 4(m) requires a plaintiff to serve the
marred papers Were rewarded to ali i¤€0¤e€r summons and complaint upon named defendants
address- Thus, the Cowt Ordered defendant to within 120 days after the filing of the complaint.
re-serve the motion papers on plaintiff at the proper Failuic to comply with the 120 day service
address- See Lerrer Order dared June 13, 1994 requirement results in the dismissal of the
By letter dated June 20, 1994, defendant forwarded Complaint without prejudice Rule 4(m) further
the motion papers to plaintiffs at the correct provides that if the plaintiff shows good cause for
address. FNI Pursuant to this Court's June 13, failure to satisfy the 120 day requirement “the court
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Case 1:O5—cv—OO789-KAJ Document 3-3 Filed O3/29/2006 Page 3 of 3 g
Not Reported in F.Supp. Page 2
Not Reported in F.Supp., 1994 WL 591556 (D.N.J.), 74 A.F.T.R.2d 94-5641
(Cite as: Not Reported in F.Supp.)
shall extend the time for service for an appropriate
period."
*2 In response to the instant motion plaintiffs have
not offered any proof of service on the United
States attorney or the Attomey General.
Furthermore, plaintiffs have not offered any
explanation for their failure to satisfy the service
requirements. In fact, plaintiffs have submitted no
opposition to the instant motion.
Accordingly, because plaintiffs have failed to
satisfy the service requirements of Rule 4(i)(l) and
(2) and because more than 120 days have passed
since the filing of the Complaint, defendant IRS's
motion to dismiss is GRANTED.
An appropriate form of Order accompanies this
Opinion.
FN1. A courtesy copy of the transmittal
letter and supporting documentation was
received by the Court on June 24, 1994.
FN2. Rule 4(i)(l) applies to service upon
the United States. Rule 4(i)(2) applies to
service upon an officer, agency or
corporation of the United States. Rule
4(i)(2) requires a plaintiff who brings an
action against an agency of the United
States to satisfy the service requirements of
4(i)(l) in addition to serving the agency
itself.
D.N.J.,1994.
Fernandez v. U.S., I.R.S.
Not Reported in F.Supp., 1994 WL 591556
(D.N.J.), 74 A.F.T.R.2d 94-5641
Briefs and Other Related Documents (Back to top)
· 2;93CV05378 (Docket) (Dec. 02, 1993)
END OF DOCUMENT
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