United States District Court, D. Kansas
REPORT AND RECOMMENDATION
J. James, U.S. Magistrate Judge
fourteen (14) days after being served with a copy of this
Report and Recommendation, any party, pursuant to 28 U.S.C.
§ 636(b)(1) and Fed.R.Civ.P. 72(b)(2), may file written
objections to this Report and Recommendation. A party must
file any objections within the fourteen-day period if that
party wants to have appellate review of the proposed findings
of fact, conclusions of law, or recommended disposition. If
no objections are timely filed, no appellate review will be
allowed by any court.
United States has filed a Motion to Substitute Defendants,
Amend Caption, and Dismiss Complaint for Lack of Personal
Jurisdiction (or, Alternatively, for an Order that the United
States Need Not Answer or Otherwise Move with Respect to the
Complaint until 60 Days After Proper Service) (ECF No. 5).
The undersigned Magistrate Judge has ruled on those portions
of the motion that were referred to her, i.e. the requests to
substitute Defendants and amend the case caption. On December
4, 2019, District Judge Carlos Murguia referred to the
undersigned Magistrate Judge for a report and recommendation
that portion of the motion seeking dismissal. After reviewing
the motion and the supporting brief,  the Court recommends that
the district judge deny the motion.
district court lacks personal jurisdiction over a party until
summons has properly been served on that party. Service of
process on the United States requires delivery of a copy of
the summons and complaint to the United States Attorney for
the district in which suit is brought, with a copy sent by
registered or certified mail to both the Attorney General of
the United States and the applicable officer or
agency. Plaintiff has 90 days after filing the
complaint to accomplish service.
Plaintiff proceeds pro se, his pleadings are liberally
construed. However, the district court's role is
not to act as advocate for the pro se
United States moves to dismiss Plaintiff's complaint for
failure to effect service of process on the United States.
The government acknowledges that Plaintiff has properly
served Defendant Olsen. The government argues that because
Plaintiff has not timely served a summons and complaint on
the United States, this Court lacks personal jurisdiction
over the United States and the complaint must be
the United States is correct in its statement of the law, it
fails to recognize that Plaintiff would have had no reason to
serve the United States because Plaintiff did not sue the
United States. Instead, Plaintiff's complaint names
individual employees of the Internal Revenue Service as
Defendants. Although the undersigned Magistrate Judge has
granted the United States' motion to substitute itself
into this case as the sole party Defendant in place of the
improperly named individual Defendants, that order was
entered more than 90 days after Plaintiff filed his
United States tacitly acknowledges the unfairness of its
request for dismissal by asking for alternative relief in the
form of an order stating that the United States need not
answer or otherwise plead with respect to the complaint until
60 days after Plaintiff properly effects service of process
by serving a summons and copy of the complaint on the U.S.
Attorney's Office for the District of Kansas and on the
U.S. Attorney General.
Court finds that dismissal is an inappropriate remedy. The
Court further finds that, pursuant to Federal Rule of Civil
Procedure 12(a)(2), the deadline for the United States to
answer or otherwise respond to Plaintiff's complaint
should be 60 days following the Court's order
substituting the United States as the sole party Defendant.
Accordingly, the Court recommends Defendants' motion be
denied and that the United States be required to answer or
otherwise respond to Plaintiffs complaint within 60 days
following the Court's order substituting the United
States as the sole party Defendant.