United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, CHIEF JUDGE.
before the Court is the United States Department of
Education's (“DoE”) Motion to Dismiss for
Insufficiency of Service. ECF No. 46. Plaintiff Kathorine
Cobb has not served the DoE according to the Federal Rules of
Civil Procedure. She is ordered to show good cause why she
has failed to comply with the Federal Rules governing
Memorandum Opinion and Order dated December 7, 2016, after
denying Cobb's request to remand the case to state court
this Court permitted Cobb leave to amend her complaint. ECF
No. 28. Cobb filed her amended complaint on December 16,
2016. ECF No. 31. In her amended complaint, Cobb added the
DoE as a defendant and asserted a negligent supervision cause
of action against the DoE. First Am. Compl. ¶ 39, ECF
No. 31. On January 30, 2017, the United States Attorney for
the Southern District of West Virginia received by mail a
copy of the Summons and First Amended Complaint along with a
letter from Plaintiff's counsel. The letter stated:
Enclosed for informational purposes only, pursuant to 26
U.S.C. § 7434, is a copy of the Amended Complaint that
was filed in the USDC Southern District of WV on December 16,
2016. Note that you are not being sued in this matter, it
is just for your information.
Dismiss, Ex. 1, ECF No. 47-1 (emphasis added). Then Cobb
attempted to serve the DoE by mailing copies of the Summons
and Complaint to the West Virginia Secretary of State. The
Court received notice from the Secretary of State of West
Virginia that it had accepted service on behalf of the DoE on
February 7, 2017. ECF No. 37. The DoE has still not been
to Rule 12(b)(5) of the Federal Rules of Civil Procedure, the
DoE now requests that the case be dismissed for Cobb's
failure to properly serve the DoE.
12(b)(5) of the Federal Rules of Civil Procedure permits a
party to move for dismissal where service of process is
insufficient. It is the plaintiff's burden to demonstrate
that service of process was validly effected. Scott v.
Md. State Dep't of Labor, ___ F. App'x ___, No.
15-1617, 2016 WL 7378091, at *3 (4th Cir. Dec. 20, 2016)
(citing Fed.R.Civ.P. 12(b)(5); Dickerson v.
Napolitano, 604 F.3d 732, 752 (2d Cir. 2010)).
“Should the Court determine that service of process is
insufficient the Court has broad discretion to dismiss the
action or to retain the case but quash service. . . .”
Ballard v. PNC Fin. Servs. Grp., Inc., 620 F.Supp.2d
733, 735 (S.D. W.Va. 2009) (quoting Cranford v. United
States, 359 F.Supp.2d 981, 984 (E.D. Cal. 2005)).
Rule of Civil Procedure 4(i)(2) requires that a party
attempting to sue a federal agency serve the summons and
complaint by registered mail on the United States Attorney
for the district in which the action is brought, the Attorney
General of the United States, and the agency being sued.
Fed.R.Civ.P. 4(i)(2). Rule 4(m) requires that service be
effected within 90 days of filing the complaint. Fed.R.Civ.P.
4(m). If service is not made within 90 days, the suit must be
dismissed without prejudice. Id.
Cobb has had trouble following the Federal Rules in this
case. A plaintiff cannot serve a federal agency
by serving the West Virginia Secretary of State. See
Fed. R. Civ. P. 4(i)(2). The proper method to serve a federal
agency is clearly stated in Rule 4. Id. Moreover,
the letter sent to the United States Attorney for the
Southern District of West Virginia is improper service. On
its face it states that the recipient is not being sued, but
in fact Cobb is suing the United States government albeit a
discrete department of that government. The United States
Attorney and the Attorney General are the designated legal
representatives of the government that she is suing. Rule 4
requires actual service on the United States
Attorney, the Attorney General, and the agency that is being
sued-not just notice. See Fed. R. Civ. P. 4(i)(2).
While notice is an important aspect of service, it is not the
only function. See Prewitt Enters., Inc. v. Org of
Petroleum Exporting Countries, 353 F.3d 916, 924 n. 14
(11th Cir. 2003) (citing Hanna v. Plumer, 380 U.S.
460, 463 n. 1 (1965) (dictum); Milliken v. Meyer,
311 U.S. 457, 463 (1940)) (“It is true that receipt of
actual notice is an important factor in considering whether
service of process is adequate. However . . . actual notice
alone [is] not enough . . . .”). The letter enclosed
with the summons and complaint has the apparent goal of
simply notifying the United States Attorney, not to actually
more odd, Cobb cites to the Internal Revenue Code as the
source of the duty to notify, but not serve, the United
States Attorney. Mot. to Dismiss, Ex. 1, ECF No. 47-1. As far
as this Court can tell 26 U.S.C. § 7434 has absolutely
nothing to do with serving a federal agency as a defendant in
a lawsuit. See 26 U.S.C. § 7434. Rather, its
provisions apply only to the Internal Revenue Service
(“IRS”) and only to notify the IRS of certain
citizen suits. Id. It is not a substitute provision
for serving the IRS as a defendant in a lawsuit.
believes these defects should result in its dismissal from
this suit rather than leave to permit Cobb to attempt proper
service. The DoE raises the issue of its joinder as a reason
for why dismissal is the proper result. The DoE believes that
it was never properly joined and the deadline for joining
additional parties has passed. See Scheduling Order