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Tagle v. Department of Homeland Security

United States District Court, D. Nevada

May 9, 2019

VICTOR TAGLE, Plaintiff
v.
DEPARTMENT OF HOMELAND SECURITY, Defendant

         ORDER (1) DENYING PLAINTIFFS MOTIONS TO CHANGE VENUE, (2) DENYING PLAINTIFFS MOTIONS FOR SPEEDY TRIAL, (3) DENYING PLAINTIFFS MOTIONS FOR DEFAULT JUDGMENT, (4) EXTENDING DEADLINE TO SERVE DEFENDANT, AND (5) OVERRULING PLAINTIFFS OBJECTION TO MAGISTRATE JUDGE'S ORDER [ECF NOS. 83, 85, 95, 97, 98, 101, 103, 105, 110]

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.

         Before the court are plaintiff Victor Tagle's two motions to change venue or transfer facilities (ECF Nos. 83; 98), three motions for speedy trial (ECF No. 85; 103; 105), five motions for default judgment (ECF Nos. 95; 97; 101; 103; 105), and his objection to Magistrate Judge Ferenbach's March 27, 2019 order (ECF No. 110).

         Tagle has not yet completed service of process on the defendant in accordance with Federal Rule of Civil Procedure 4(i)(1)-(2), so I deny his motions as premature. I also overrule Tagle's objections to the March 27 order because his objections are either moot or Judge Ferenbach's rulings were not clearly erroneous or contrary to law. Finally, I extend the deadlines to serve the defendant and I warn Tagle that if he does not meet those deadlines, I will dismiss this case.

         I. PROCEDURAL HISTORY

         Although this case was filed more than three and a half years ago, it has not yet moved beyond the initial stages of summons and service. The docket includes nearly 40 motions by Tagle and nearly 20 orders by the court. It is therefore necessary to provide a summary of the procedural history of this case so that it is clear to Tagle what he must do to properly litigate moving forward.

         Tagle filed his original Complaint against the Department of Homeland Security (DHS) on December 31, 2015. ECF No. 1. After reviewing the Complaint, Judge Ferenbach dismissed it with leave to amend for failure to state a claim. ECF No. 2. Judge Ferenbach ordered Tagle to include in his Amended Complaint allegations that Tagle had (1) submitted an application for naturalization to the Attorney General under 8 U.S.C. § 1445(a) and (2) that either the application was denied or 120 days had passed without the Attorney General having made a determination. Id. at 1. Four months later, Tagle filed his First Amended Complaint. ECF No. 19. Judge Ferenbach then ordered Tagle to file a Second Amended Complaint because, according to the allegations in the First Amended Complaint, Tagle had only recently submitted his application for naturalization, so he did not yet have a claim. ECF No. 34. Tagle filed his Second Amended Complaint on November 9, 2017. ECF No. 35. This Complaint was screened by Judge Ferenbach on November 15, 2017, and he allowed Tagle to proceed in his action against the DHS. ECF No. 36.

         Pursuant to the screening order and Federal Rule of Civil Procedure 4(m), Tagle had 20 days to furnish the U.S. Marshal with the necessary Form USM-285, and 20 days after receiving the Form USM-285 back from the U.S. Marshal to notify the court whether service had been accomplished. Id. However, the screening order that was sent to Tagle was returned as undeliverable, and the court subsequently did not hear from Tagle for four months. Because Tagle had not filed a change of address notice, I ordered him to show cause why the case should not be dismissed. ECF No. 45. Two weeks later, Tagle responded to my order and explained that he had been moved to a facility in Arizona and had not received the court's orders. ECF No. 46. On April 24, 2017, 1 ordered the clerk of court to send Tagle a copy of the screening order and to issue a summons to the named defendant, and I extended the deadline for accomplishing service and notifying the court whether the defendant was served. ECF No. 47.

         On July 10, 2018, the summons was returned unexecuted because the Marshal had not received the required Form USM 285 from Tagle. ECF No. 61. Tagle moved to have the summons reissued, claiming that he was unable to get a copy of the Form USM 285. ECF No. 62. I granted that motion, re-extended the deadline for accomplishing service, and ordered the clerk of court to send Tagle blank copies of the Form USM 285. ECF No. 66. Tagle then moved to again extend the time to effectuate service and asked for more copies of the Form USM 285, asserting that the facility where he was being held was purposefully frustrating his attempts to properly serve the defendant. ECF Nos. 68; 69. Because Tagle was able to file a copy of the Form USM 285 with the Court (ECF No. 76 at 2), Judge Ferenbach ordered the clerk of court to reissue summons along with a copy of that form in order to facilitate service. ECF No. 86. On December 3, 2018, the summons issued to the DHS was returned as executed, showing that it had been served on November 29, 2018. ECF No. 92.

         II. PROPER SERVICE

         As of today's date, the DHS has not filed an answer. Tagle has subsequently moved (five times) for entry of default, arguing that default is wan-anted against the DHS because the time for responsive pleadings has passed. ECF Nos. 95; 97; 101; 103; 105. Tagle is correct that Federal Rule of Civil Procedure 12(a)(2) requires that a United States agency "must serve an answer to a complaint. . . within 60 days after service ... on the United State attorney . . . ." However, Tagle has still not properly served the summons and Second Amended Complaint in accordance with the Rules of Civil Procedure.

         Federal Rule of Civil Procedure 4 governs service. Because the DHS is a United States agency, Tagle must abide by Rule 4(i)(2), which has two operative requirements: "a party must. . . send a copy of the summons and of the complaint by registered or certified mail to the agency . . ." and "a party must serve the United States." When the summons was returned as executed on the DHS on December 3, 2018, Tagle met the first of Rule 4(i)(2)'s requirements. However, Tagle still has to serve the United States.

         To serve the United States, a party must:

(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought-or to an assistant United States attorney or clerical employee whom the United States attorney ...

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