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Tai v. United States

United States District Court, D. Colorado

February 10, 2015

NORMAN TAI, and CANDIS TAI, Plaintiffs,
v.
UNITED STATES OF AMERICA, THE INTERNAL REVENUE SERVICE, SUSAN MEREDITH, MITCHELL COX, and JASON BLOUCH, Defendants.

ORDER

RAYMOND P. MOORE, District Judge.

This matter comes before the Court on Magistrate Judge Boyd N. Boland's Recommendation (ECF No. 38) to dismiss Plaintiffs Norman Tai and Cadis Tai's (collectively, "Tais") Complaint (ECF No. 3) for failure to serve timely Defendants the United States of America, the Internal Revenue Service, Susan Meredith, Mitchell M. Cox, and Jason Blouch. Plaintiffs filed a response ("Objections") to the Recommendation within the time permitted for pro se parties to file an objection. (ECF No. 41.) Defendants filed a reply to Plaintiffs' Objections. (ECF No. 42.)

For the reasons set forth below, the Court (1) OVERRULES Plaintiffs' Objections; (2) ADOPTS the Recommendation; and (3) DISMISSES Plaintiffs' Complaint without prejudice.

I. LEGAL STANDARDS

A. Review of the Magistrate Judge's Report and Recommendation

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 to a recommendation 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. Pro Se Status

Plaintiffs are proceeding pro se. The Court, therefore, reviews their pleadings and other papers liberally and holds them to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). A pro se litigant's conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating a court may not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf) (citation omitted); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a court may not construct arguments or theories for the plaintiff in the absence of any discussion of those issues) (citations omitted). Plaintiffs' pro se statuses do not entitle them to application of different rules of civil procedure. See Hall, 935 F.2d at 1110; Wells v. Krebs, Case No. 10 CV 00023, 2010 WL 3521777, at *2 (D. Colo. Sept. 1, 2010) (citation omitted).

C. Service of Process

Rule 4(i) of the Federal Rules of Civil Procedure provides that service on the United States and its agencies and employees shall be made as follows:

(1) 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 designates in a writing filed with the court clerk - or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at the ...


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