Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cobb v. GC Services, LP

United States District Court, S.D. West Virginia, Huntington Division

May 8, 2017

KATHORINE COBB, Plaintiff,
v.
GC SERVICES, LP, U.S. DEPARTMENT OF EDUCATION, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS, CHIEF JUDGE.

         Pending 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 service.

         I. Background

         By 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.

         Mot. to 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 properly served.

         Pursuant 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.

         II. Legal Standard

         Rule 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)).

         Federal 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.

         III. Discussion

         Clearly Cobb has had trouble following the Federal Rules in this case.[1] 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 serve her.

         Even 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.

         The DoE 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.