United States District Court, D. Colorado
HOWARD M. WATTS, JR., Plaintiff,
JOHN KOSKINEN, Commissioner IRS, CAROLYN W. COLVIN, Acting Commissioner SSA, CAROLYN SIMMONS, Associate Commissioner, ANNETTE STREETER, Appeals Area Director, IRS, J. TRUJILLO, Collections Agent, IRS, and ELLEN DEMETRI, Tax Payer Advocate, IRS, Defendants.
RAYMOND P. MOORE, District Judge.
This matter is before the Court on United States Magistrate Judge Kristen L. Mix's Recommendation ("Recommendation on Motions to Dismiss") (ECF No. 59) to grant Defendants Werfel, Streeter, and Trujillo's motion to dismiss (the "IRS Motion") (ECF No. 46) and Defendants Colvin and Simmons' motion to dismiss (the "SSA Motion") (ECF No. 30). Both motions pertain to Plaintiff Watts' Amended Complaint (ECF No. 7). Also before the Court is Judge Mix's Recommendation to dismiss Defendant Demetri ("Recommendation on Failure to Serve"). (ECF No. 56.)
Plaintiff did not file an objection to Judge Mix's Recommendation on Motions to Dismiss with respect to the IRS and SSA motions. Plaintiff filed an objection to Judge Mix's Recommendation on Failure to Serve with respect to dismissing Defendant Demetri. (ECF No. 58.)
For the reasons stated below, the Court: (1) OVERRULES Plaintiff's objection to the Recommendation on Failure to Serve; (2) ADOPTS the Recommendation on Failure to Serve with respect to dismissing Defendant Demetri; and (3) ADOPTS the Recommendation on Motions to Dismiss with respect the IRS and SSA motions.
I. LEGAL STANDARDS
A. Review of the Magistrate Judge's Reports and Recommendations
When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." In conducting its review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed timely in accordance with the Federal Rules of Civil Procedure and specific enough to enable the "district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute." United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, "the district court may review a magistrate's report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed.R.Civ.P. 72 Advisory Committee's Note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").
B. Dismissal for Lack of Subject Matter Jurisdiction
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a motion to dismiss for lack of subject matter jurisdiction may be brought in two forms: "facial" or "factual." Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). A "facial attack" as to subject matter jurisdiction challenges the sufficiency of the complaint and in reviewing such a challenge, the Court must accept the allegations in the complaint as true. Id. A "factual attack" as to subject matter jurisdiction challenges the facts upon which subject matter jurisdiction depends and in reviewing such a challenge, the Court has discretion to consider documents outside complaint. Id. at 1003. If undertaking a review of subject matter jurisdiction predicated upon a factual attack of the complaint, "a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion." Id.
Regardless of the type of challenge to subject matter jurisdiction, the plaintiff retains the burden of establishing subject matter jurisdiction. Port City Props. v. Union Pacific R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008) (citation omitted).
C. Dismissal for Insufficient Service of Process
"Effectuation of service is a precondition to suit...." Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998). Without proof of proper service, the Court lacks jurisdiction over a defendant. Okla. Radio Assocs. v. FDIC, 969 F.2d 940, 943 (10th Cir. 1992). A Rule 12(b)(5) motion challenges the mode of delivery or the lack of delivery of the summons and complaint. In opposing a motion to dismiss for insufficient service of process, "plaintiff bears the burden of making a prima facie case that he has satisfied statutory and due process requirements so as to permit the court to exercise personal jurisdiction over the defendant." Meyers v. Pfizer, Inc., Case No. 13-CV-01508-WJM-CBS, 2014 WL 1598723, at *2 (D. Colo. Apr. 21, 2014) (citations omitted), adopted in Meyers v. Pfizer, Inc., Case No. 13-CV-1508-WJM-CBS, 2014 WL 2490158, at *1 (D. Colo. June 2, 2014). The plaintiff must demonstrate that the procedure employed by him to effect service satisfied the requirements of Rule 4 of the Federal Rules of Civil Procedure. Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987).
D. Pro Se Status
A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court, however, cannot serve as a pro se litigant's advocate and make arguments for him. Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1173 (10th Cir. 2013); Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). The Court cannot "supply additional factual allegations to round out [a pro se litigant's] complaint...." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted). And pro se litigants ...