United States District Court, D. Colorado
UNITED STATES EX REL. SAMUEL J. MAY, an individual, Plaintiff,
UNITED STATES OF AMERICA; THE DEPARTMENT OF JUSTICE, an agency of the United States; THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, an agency of the United States; FOOD AND DRUG ADMINISTRATION, an agency of the United States; EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, an agency of the United States; DEBORAH ZWANY, SARA WINSLOW, in individual capacity, Department of Justice; PATRICK HANNIGAN, in individual capacity, Office of Criminal Investigations; OMOTUNDE OSUNSANMI, in individual capacity, Food and Drug Administration; Defendants,
AMGEN USA INC., et al., a California and Delaware Corporation, Defendant.
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
matter is before the Court on the following matters:
(1) Plaintiff's response (ECF No. 66) to the Court's
Order (the “Order”) (ECF No. 65) to show cause
why the following Defendants should not be dismissed for
failure to comply with Fed.R.Civ.P. 4(m): the Food and Drug
Administration; Equal Employment Opportunity Commission;
Deborah Zwany; Sara Winslow; Patrick Hannigan; and Omotunde
Osunsanmi (collectively, the “Unserved Federal
(2) Defendant Amgen's Supplemental Submission of
Reasonable Attorney's Fees (the “Supplement”)
(ECF No. 68); and
(3) Plaintiff's “Leave to File Motion for
Reconsideration and Judgment in Support of Plaintiff's
Notice of Supplemental Authority; Respective Replies, and
Response to Show Cause Order” (the “Motion to
Reconsider”) (ECF No. 80).
review of these pending matters, and being otherwise fully
advised, the Court finds and orders as set forth
parties are well versed with the background which precedes
this Order so it will only be briefly summarized here.
filed this action on March 10, 2017. The time period to serve
defendants expired on June 8, 2017. By Order dated August 29,
2018, the Court adopted the Magistrate Judge's
recommendation to grant Defendant Amgen's and the Federal
Defendants' respective substantive motions and to
dismiss these defendants. The Court also accepted the
recommendation to grant Defendant Amgen's motion for
attorney's fees. The amount of the fees to be awarded
were to be determined upon further briefing. The Court,
however, rejected the recommendation to dismiss the entire
complaint with prejudice because, as relevant here, the
Unserved Federal Defendants remained. Accordingly, the
Court's Order contained (1) a show cause order
(OSC”) directing Plaintiff to show cause why the
Unserved Federal Defendants should not be dismissed for
failure to timely effect service and (2) an order directing
Defendant Amgen to brief the amount of fees to be awarded.
filed a response to the OSC. Defendant Amgen and the Federal
Defendants filed responses to Plaintiff's response, to
which Plaintiff filed a reply. Defendant Amgen filed the
Supplement, to which Plaintiff filed a response. Defendant
Amgen thereafter filed a reply in support of its fee request.
Meanwhile Plaintiff filed a “motion for
reconsideration” pursuant to Fed.R.Civ.P. 60(b), 52(a),
and 52(c). Upon review of the motion for
reconsideration, the Court found no response was required.
These matters are ripe for resolution.
Plaintiff's Pro Se Status
Court construes Plaintiff's filings liberally because he
proceeds pro se. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam). Nonetheless, the Court
does not serve as Plaintiff's advocate, see Gallagher
v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009), and he
is required to follow the same procedural rules as counseled
parties. See Yang v. Archuleta, 525 F.3d 925, 927
n.1 (10th Cir. 2008) (“Pro se status
‘does not excuse the obligation of any litigant to
comply with the fundamental requirements of the Federal Rules
of Civil and Appellate Procedure.'” (citation
The OSC and Plaintiff's Response
Plaintiff's Request for an Extension of
to Fed.R.Civ.P. 4(m) “[i]If a defendant is not served
within 90 days after the complaint is filed, the court-on
motion or on its own after notice to the plaintiff-must
dismiss the action without prejudice against that defendant
or order that service be made within a specified time. But if
the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.” Plaintiff raises several arguments, none of
which are sufficient to support an extension of time to serve
the Unserved Federal Defendants.
Plaintiff argues his Article III standing must be addressed
before the Unserved Federal Defendants should be dismissed.
As the Federal Defendants argue, standing is a distinct issue
from service. And, it is timely service which is at issue.
Thus, this argument fails to show or support good cause for
Plaintiff's lack of timely service on the Unserved
relying on a letter he received from the Department of
Justice dated February 23, 2016,  Plaintiff argues he believed
that his service in 2016 on the Department of
Justice and the Department of Health and Human Services
regarding an administrative tort claim “fully satisfied
the service requirement for all the named Federal
Defendants” for this civil action filed in
2017. Nothing in that letter, however, would support
such a belief. Moreover, Plaintiff's argument rings
hollow in light of other admissions and statements contained
in the court record. For example, in May 2017, Plaintiff
stated “I elected not to serve the complaint
to the individually named Government's past or present
employees at this time” because he believed that only
the United States could be sued for money
damages. (ECF ...