United States District Court, D. Kansas
AARON J. HECHT, Plaintiff,
INTERNAL REVENUE SERVICE, Defendant.
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
December 13, 2018, the court dismissed pro se
plaintiff 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
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.
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.
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.
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.
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
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.
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”). 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.
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 ...