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Hecht v. Internal Revenue Service

United States District Court, D. Kansas

April 10, 2019

AARON J. HECHT, Plaintiff,
v.
INTERNAL REVENUE SERVICE, Defendant.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE.

         On December 13, 2018, the court dismissed pro se plaintiff[1] Aaron J. Hecht's case without prejudice under Federal Rule of Civil Procedure 4(m) because plaintiff had failed to serve defendant. Now, this matter is before the court on a letter from plaintiff that has been docketed as a “Motion for Relief from Judgment” (Doc. 17). For reasons explained below, the court denies plaintiff's Motion.

         I. Background

         Plaintiff filed his Complaint in this case on December 21, 2017. Doc. 1. His original deadline to serve process was March 21, 2018, under Fed.R.Civ.P. 4(m). Doc. 6 at 1. But, Magistrate Judge Teresa J. James extended plaintiff's deadline to June 19, 2018, because plaintiff paid his filing fee about two months after filing his Complaint. Id. Plaintiff did not meet the extended June 19 deadline to serve process. Doc. 7 at 1. So, the court required him to show good cause in writing, by July 11, 2018, why the court should not dismiss his case for failing to serve the Summons and Complaint by that deadline. Id.

         On July 23, 2018, the court entered judgment dismissing plaintiff's Complaint without prejudice. Doc. 9. But, when it dismissed the Complaint, the court had overlooked a letter plaintiff had directed to the court. Doc. 10. The court had received the letter on July 12, 2018. Id. Though plaintiff's submission was not timely, the court nonetheless vacated its dismissal of plaintiff's action on August 31, 2018. Doc. 11. In its Order vacating its earlier dismissal, the court granted plaintiff another extension of time, giving him until October 1, 2018, to serve defendant. Doc. 12.

         More than two weeks after this extended deadline, plaintiff still had not served defendant. Because plaintiff already had paid a filing fee for this action, the court granted him one final extension until November 17, 2018, to serve defendant. Doc. 13. But, as the court warned plaintiff, if he failed to serve defendant by the November 17 deadline, the court would dismiss his action without prejudice.

         Again, plaintiff missed his court-mandated deadline. So, nearly a month after the November 17 deadline, the court dismissed plaintiff's action, as it had warned plaintiff it would do. See Doc. 15 (dated December 13, 2018). And, until plaintiff filed his most recent Motion (dated January 24, 2019), the docket reflected that plaintiff-after several deadline extensions- had failed to serve defendant.

         II. Legal Standard

         Plaintiff's most recent filing cites no authority supporting his request. But, the court liberally construes his letter as a motion seeking relief under Federal Rule of Civil Procedure 60(b). Rule 60(b) permits a district court to relieve a party from a final judgment or order. A court may grant a Rule 60(b) motion on the following grounds:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . . misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged . . .; or (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). But, relief under Rule 60(b) is “ʻextraordinary and may only be granted in exceptional circumstances.'” Lebahn v. Owens, 813 F.3d 1300, 1306 (10th Cir. 2016) (quoting ClearOne Commc'ns, Inc. v. Bowers, 643 F.3d 735, 754 (10th Cir. 2011)). A Rule 60(b) motion is no substitute for a direct appeal, and a party may not revisit issues already presented in prior filings. Id.

         III. Analysis

         Plaintiff asserts that he has tried, multiple times, to serve defendant. He contends that he “used certified mail to send a summons” to the offices of the United States Attorney for the District of Kansas, the United States Attorney General, and the Internal Revenue Service (“IRS”).[2] Doc. 17 at 1; see also Id. at 2-4. He also represents that he “received green cards back in the mail”-presumably, returns of service-from the offices of the United States Attorney and the United States Attorney General. Doc. 17 at 1. Plaintiff attaches copies of these “green card” returns of service, noting that he “needed to take [them] back to [the] Clerk's Office.” Id. at 4. But, plaintiff asserts, he never received a return of service from the IRS. Plaintiff says he thrice attempted to mail summonses to the IRS, once using a different address.[3]

         Applying Rule 60(b), plaintiff's Motion doesn't direct the court to any part of the record that demonstrates mistake, inadvertence, surprise, or excusable neglect. See Fed. R. Civ. P. 60(b)(1) (emphasis added). Here, plaintiff could have notified the court of his attempts to serve defendant. Plaintiff also introduces no newly discovered evidence. See Id. at 60(b)(2) (emphasis added). He does not assert that defendant committed fraud, misrepresentation, or misconduct. See Id. at 60(b)(3). And, he does not contend that the court's dismissal is void, already satisfied, based on a reversed or vacated judgment, or inequitable in its future application. See Id. at 60(b)(4)-(5). Finally, plaintiff doesn't provide “any other reason that justifies relief, ” id. at 60(b)(6), that rises to the level of “‘extraordinary circumstances'” warranting exercise of the court's “‘broad authority to relieve a party from a[n] [order].'” See Shepard v. Rangel, 730 Fed.Appx. 610, 614 ...


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