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United States ex rel. May v. United States

United States District Court, D. Colorado

November 18, 2019

UNITED STATES EX REL. SAMUEL J. MAY, an individual, Plaintiff,
v.
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,
v.
AMGEN USA INC., et al., a California and Delaware Corporation, Defendant.

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.

         This 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 Defendants”);
(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).

         Upon review of these pending matters, and being otherwise fully advised, the Court finds and orders as set forth below.[1]

         I. BACKGROUND

         The parties are well versed with the background which precedes this Order so it will only be briefly summarized here.

         Plaintiff 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'[2] 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.

         Plaintiff 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).[3] Upon review of the motion for reconsideration, the Court found no response was required. These matters are ripe for resolution.

         II. ANALYSIS

         A. Plaintiff's Pro Se Status

         The 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 omitted)).

         B. The OSC and Plaintiff's Response

         1. Plaintiff's Request for an Extension of Time

         Pursuant 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.[4]

         First, 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 Federal Defendants.

         Next, relying on a letter he received from the Department of Justice dated February 23, 2016, [5] 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.[6] (ECF ...


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