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D'Addabbo v. Smith

United States District Court, D. Utah, Central Division

August 3, 2017

DAVID J. D'ADDABBO, Plaintiff,
v.
EVELYN SMITH, et al., Defendants.

          Clark Waddoups District Judge.

          MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION TO SHOW CAUSE; FOR COURT ORDER TO CEASE AND DESIST (ECF NO. 5) REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR JUDGMENT BY DEFAULT (ECF NO. 6)

          EVELYN J. FURSE United States Magistrate Judge.

         Pending before the Court[1] are Mr. D'Addabbo's Motion to Show Cause; for Court Order to Cease and Desist (ECF No. 5) and Mr. D'Addabbo's Motion for Judgment by Default (ECF No. 6). Because Mr. D'Addabbo failed to effect service on the Federal Defendants, the Court DENIES Mr. D'Addabbo's Motion to Show Cause for Court Order to Cease and Desist and RECOMMENDS the District Judge deny Mr. D'Addabbo's Motion for Default Judgment, quash service of process, and provide Mr. D'Addabbo an additional thirty (30) days to serve the Federal Defendants in compliance with Rule 4(c)(2) and (i).

         I. BACKGROUND

         On August 2, 2016, Mr. D'Addabbo, proceeding pro se, filed a Complaint against “Evelyn Smith, an employee of the IRS Corporation, ” “Treasury Inspector General for Tax Administration, and his agents, as a Corporation with the IRS and the U.S. Treasury Corporation, ” and “United States Corporation 052714196 Council of the Inspectors General on Integrity and Efficiency” (collectively the “Federal Defendants”). (Compl., 1, ECF No. 1.) The title of the Complaint alleges “14 Criminal charges” against the Federal Defendants, including

Racketeering with national and international bankers holding companies and other associations, agencies and nations; Fraud; Extortion; Kidnapping false arrest, Formulation of Grand Juries to false indict natural persons, Using unlawful Bill of Attainder Fines to extort FRNs; Unlawful entrapment at contract without full disclosure to Applicants; Unlawful liens and or garnishments without due process at law; Threats made by using the United States Post office to enforce malicious claims, fines, etc…; Refusal in obeying Freedom of Information Act laws; Conspiracy with private Tax companies; Conspiracy with private and Corporate employers; Conspiracy with State, County and City governments; Conspiracy to alter the natural person to corporate judicial persons; And other crimes not yet noted.

(Compl. 1, ECF No. 1.) In his request for damages, Mr. D'Addabbo asks this Court to terminate Evelyn Smith and her “accomplices” without benefits, expose by criminal indictment the companies listed in the Complaint, sentence the Federal Defendants to prison time, and award Mr. D'Addabbo $2, 026, 485.00 in punitive damages. (Compl. 13-14, ECF No. 1.)

         On November 14, 2016 Mr. D'Addabbo filed “Plaintiff's Motion to show Cause; for Court Order to Cease and Desist, ” (“Mot. to Show Cause”), (ECF No. 5), and “Plaintiff's Motion for: Judgment by Default, ” (“Mot. for J. by Default”), (ECF No. 6). On November 23, 2016, the Federal Defendants filed a combined Opposition to Mr. D'Addabbo's Motion to Show Cause and Motion for Judgment by Default. (ECF No. 10.) Mr. D'Addabbo filed his combined Reply on December 13, 2016. (ECF No. 15.)

         On April 20, 2017, the District Judge issued an order consolidating D'Addabbo v. I.R.S., No. 1:17-cv-00030, into this matter. (Order Consol. Cases, ECF No. 29.) Mr. D'Addabbo objected to the Order Consolidating Cases. (ECF No. 30.) On May 5, 2017, the District Judge denied Mr. D'Addabbo's objection and consolidated the cases, stating that “Mr. D'Addabbo presents no argument that consolidating the cases would be inappropriate.” (Order Den. Obj., 2, ECF No. 31.)

         II. DISCUSSION

         In his Motion to Show Cause, Mr. D'Addabbo asks for an order requiring the Federal Defendants to “FORCE Evelyn Smith and the other Defendants, to honor this court's jurisdiction!, ” “to Cease and Desist all actions immediately and to return all Federal Reserve Notes that have been removed from the Plaintiff's wife's accounts, or employers payroll and or all liens immediately removed!, ” and “to ENFORCE judgement fines upon Evelyn Smith and the IRS.” (Mot. to Show Cause 2, ECF No. 5.) In his Motion for Judgment by Default, Mr. D'Addabbo asks this Court to enter default judgment in his favor, pursuant to Federal Rule of Civil Procedure 55, because the Federal Defendants failed to respond to his Complaint within the time required by Federal Rule of Civil Procedure (Rule) 12(a)(1)(A). (ECF No. 6.) In opposition to both of Mr. D'Addabbo's motions, the Federal Defendants argue this Court should deny Mr. D'Addabbo's Motions because Mr. D'Addabbo failed to serve the Federal Defendants properly. (See Opp'n, ECF No. 10.) Specifically, (1) Mr. D'Addabbo mailed the Summonses and Complaints himself, (2) Mr. D'Addabbo failed to serve the United States, and (3) Mr. D'Addabbo failed to serve Revenue Officer Smith and the Treasury Inspector General for Tax Administration (“TIGTA”) in their official or individual capacities in accordance with Federal Rule of Civil Procedure 4. (Id. 3-4.)

         A. Mr. D'Addabo Failed to Effect Service Properly.

         The Federal Defendants argue Mr. D'Addabbo failed to serve them properly because he personally placed the Summons and Complaint in the mail in violation of Rule 4(c). (Opp'n 3, ECF No. 10.) To serve a defendant properly, “[a]ny person who is at least 18 years old and not a party may serve a summons and complaint” upon the defendant. Fed.R.Civ.P. 4(c)(2). When a plaintiff elects to serve a defendant by mail, “only a nonparty can place the summons and complaint in the mail.” Constien v. United States, 628 F.3d 1207, 1213-14 (10th Cir. 2010). The plaintiff bears the burden of establishing proper service. See Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992) (stating plaintiff bears burden of proof in establishing valid service of process).

         Here, Mr. D'Addabbo's certificate of mailing shows the defective nature of the service. On August 17, 2016, Mr. D'Addabbo mailed via certified mail a copy of the Summonses to “I.R.S. Employee Evelyn Smith;” the “U.S. Department of the Treasury, Legal Department;” and the “US. Attorny [sic] Generals office, and U.S. Dept of Justice.” (ECF No. 6-1 at 2-7.) In other words, Mr. D'Addabbo personally placed in the mail the Summons and ...


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