The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Tuesday, 15 February, 2011 09:30:31 AM
Clerk, U.S. District Court, ILCD
On December 21, 2010, a Report & Recommendation [#10] was filed by Magistrate Judge Byron G. Cudmore in the above-captioned case, recommending that pro se Plaintiff's Complaint [#1] be dismissed for want of prosecution. Plaintiff has filed an Amended Complaint, which the Court construes as an Objection [#11] to the Magistrate Judge's recommendation. This Order follows.
A district court reviews de novo any portion of a Magistrate Judge's Report and Recommendation to which written objections have been made. See FED. R. CIV. P. 72(b). "The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.
On June 8, 2010, Plaintiff Stanton J. Thompson ("Thompson") filed a Complaint against Robert Angel, Taxpayer Advocate services, National Taxpayer Advocate, and Tracy Bui, alleging that Bui has been working on his tax refunds case for two years and just stopped writing back to Thompson in reply to his notice letters regarding his tax refunds for the years 2006 and 2007. He further alleges that Bui has not sent him his $9,500.00 refund check. The Clerk's Office issued summons for service on Defendants Robert Angel as Staff Taxpayer Advocate Worker, Taxpayer Advocate Services, National Taxpayer Advocate, and Tracy Bui as Staff Taxpayer Advocate Worker. Defendant Angel was personally served on June 21, 2010, but has not filed an answer or otherwise appeared. There was personal service on Defendant Angel for Defendants Taxpayer Advocate Services and National Taxpayer Advocate. Summons was returned unexecuted on Defendant Bui on June 29, 2010.
In the Report & Recommendation, the Magistrate Judge notes five things: 1) that Defendant Angel has failed to file an answer or any type of response to Thompson's Complaint, 2) that Thompson has not taken steps to obtain a default of Defendant Angel, 3) that Thompson has not provided documentation to show that Defendant Angel is an agent, officer, or director of Defendants National Taxpayer Advocate or Taxpayer Advocate Services for proper service under Federal Rule of Civil Procedure 4, 4) Thompson has not taken steps to perfect service on Defendant Bui, and 5) Thompson was directed to take appropriate steps to move the litigation forward by December 15, 2010, or risk dismissal for want of prosecution. The Magistrate Judge ultimately recommended that Thompson's Complaint be dismissed for want of prosecution where he failed to comply with the Federal Rules.
In Thompson's Amended Complaint, construed by the Court as his Objection to the Report & Recommendation, he states that he wants to file a late default on each defendant and he was late in doing so because he does not know the law and he was not told about this matter until it was too late. He has also attached a letter from Matthew R. O'Sullivan, Taxpayer Advocate Group Manager at the Taxpayer Advocate Service,*fn1 and what he claims to be a letter from Tracy Bui, Case Advocate Employee at Taxpayer Advocate Service.*fn2
It appears that Thompson objects to the Magistrate Judge's recommendation that his Complaint be dismissed for want of prosecution on the basis that he did not know what to do in regard to seeking a motion for default against individually named defendant Robert Angel. The Magistrate Judge did direct Thompson, on November 2, 2010, to take the appropriate steps to move the litigation forward. However, the Court could not provide Thompson with legal advice, nor provide him with the specific steps he would have to take to move the litigation forward. Given the fact that Defendant Robert Angel was personally served with summons in this case, the Court grants Thompson an additional 30 days, until March 16, 2011, to file a Motion for Default against Defendant Angel. If he does not do so, his Complaint against Angel will be dismissed for want of prosecution.
As the Magistrate Judge explained, Thompson has still not properly served Defendant Tracy Bui, though he had the 120 days in which he was required to do so under Federal Rule of Civil Procedure 4(m), plus a generous amount of additional time allowed by the Magistrate Judge. Because Thompson has still not perfected service upon Defendant Bui, the Court adopts the Magistrate Judge's recommendation that Thompson's Complaint be DISMISSED for want of prosecution as to Bui.
Thompson has not adequately shown that service upon Defendant Angel was proper service upon Defendants National Taxpayer Advocate and Taxpayer Advocate Service under Rule 4. As a result, the record does not reflect that Thompson perfected service upon Defendants National Taxpayer Advocate and Taxpayer Advocate Service, though considerably more than the allowable time under Rule 4 was given to Thompson to do so. Accordingly, the Court adopts the Magistrate Judge's recommendation that ...