United States District Court, D. Utah, Central Division
DAVID J. D'ADDABBO, Plaintiff,
EVELYN SMITH, et al., Defendants.
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)
J. FURSE United States Magistrate Judge.
before the Court 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).
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,
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.)
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.)
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.)
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.)
Mr. D'Addabo Failed to Effect Service Properly.
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
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 ...