United States District Court, D. Nevada
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
ANDREW P. GORDON, District Judge.
The United States of America, acting as a defendant in this case, filed a Motion to Dismiss [Dkt. #8] the Complaint filed by plaintiffs Barbara Stuart and James Vix. For the following reasons, the Court grants the motion without prejudice.
Plaintiffs James Vix and Barbara Stuart filed a Complaint inscrutably entitled: "In Admiralty: Libel of Review, Complaint of Involuntary Servitude and Peonage. In re All Property and Rights to Property of the (Vix & Stuart) Their Estate International Monetary Fund." [Dkt. #1.] Despite the Complaint's reference to admiralty law, this case appears to arise out of liens and levies the Internal Revenue Service ("IRS") imposed on Plaintiffs for failure to pay taxes. Plaintiffs imply, based on vague and dubious reasoning, that the tax liens and levies do not hold water. Plaintiffs demand a return of money taken by the IRS and the removal of all tax liens and levies.
A. Legal Standard - Motion to Dismiss Pro Se Plaintiffs
The Court will dismiss a claim only if it is convinced beyond a doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. See Conely v. Gibson, 355 U.S. 41, 45-56 (1957). In deciding a motion to dismiss, the Court considers allegations contained in the complaint, exhibits attached to the complaint, as well as such affidavits and testimony as needed to resolve factual disputes concerning the existence of jurisdiction. See, e.g., Parks Scho. of Bus., Inc. v. Syminton, 51 F.3d 1480, 1484 (9th Cir. 1995); Federal Deposit Insurance Corp. v. Nichols, 885 F.2d 633, 635-36 (9th Cir. 1989).
The Court is cognizant of the fact that Plaintiffs are proceeding pro se. Courts hold lay plaintiffs to less stern construction standards than those to which it holds lawyers. Pro se pleadings are "liberally construed... however inartfully pleaded." Estelle v. Gamble, 429 U.S. 97, 106 (1995) (internal quotation marks omitted); Fed.R.Civ.P. 8(f) ("All pleadings shall be so construed as to do substantial justice"). Nevertheless, lay plaintiffs must comply with the same rules of procedure as other litigants. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). Courts are not advocates for litigants who choose to proceed without counsel. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
B. Plaintiffs Have Not Effectuated Proper Service on Any Defendant
As an initial matter, Plaintiffs have not effectuated proper service on any defendant. Plaintiffs enigmatically name as defendants the following parties: "Agents for the International Monetary Fund Internal Revenue Service, District Director, Special Procedures Function Officer and their Principal Governor of International Monetary Fund to aka Secretary of the Treasury." [Dkt. #1.] As best the Court can parse these defendants, Plaintiffs name unspecified agents of the International Monetary Fund, two nonexistent federal officials (The IRS District Director and Special Procedures Function Officer), and the Secretary of the Treasury. However, the allegations in the Complaint implicate only the Internal Revenue Service.
Even if the named parties were proper entities for service, Plaintiffs have failed to properly serve them. Federal Rule of Civil Procedure 4 prescribes the manner in which plaintiffs must serve defendants. A summons and complaint must be served on each defendant within 120 days of the filing of the complaint. See Fed.R.Civ.P. 4(c), (m). Plaintiffs filed their complaint on November 13, 2013, and have not provided evidence of service on any named defendant as of the date of this Order. Plaintiffs apparently attempted to serve only two entities: the Department of Treasury [Dkt. #6], and the Attorney General, who is not a named defendant in this suit [Dkt. #7].
Construing this pro se pleading liberally, the action is most properly brought against the United States, which has filed the pending motion to dismiss. Plaintiffs' Complaint identifies as defendants several unspecific federal officials, but the allegations describe actions taken by those individuals in their official capacities on behalf of the United States. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458-59 (9th Cir. 1985). Further, Plaintiffs' attempted service on the Attorney General, and "[t]he remedies sought in the complaint (i.e., the return of seized property, the release of federal tax liens...) indicate that this action is against the United States, regardless of how it is styled." Stamp, 1995 WL 661247 at *1.
Nor have Plaintiffs properly served the United States. Proper service requires delivering a copy of the summons and the complaint to the United States Attorney's office for the district where the action is brought, and mailing a copy to the Attorney General of the United States. Fed.R.Civ.P. 4(i). Plaintiffs did neither.
Although the considerable leeway afforded pro se plaintiffs may in many cases warrant extended time to properly serve, here more time would be futile because Plaintiffs' Complaint is defective for lack of subject matter jurisdiction and ...