IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MONTY W. ERVIN and, )

PATRICIA D. ERVIN, )

)

Petitioners, )

)

v. ) Civil Action No.: 01:06mc3331-MEF

)

UNITED STATES OF AMERICA, )

)

Respondent. )

MOTION TO DISMISS

Comes now the respondent, United States of America, by and through Leura G.

Canary, United States Attorney for the Middle District of Alabama, and pursuant to Rules

12(b)(2) and 12(b)(5) moves for the dismissal of the above-styled cause as the petitioners

have failed to properly serve process upon the respondent, thus depriving this Court of

personal jurisdiction over the respondent. In support of this motion the respondent states

as follows:

1. The petitioner initiated these proceedings by filing a Motion to Quash on

July 26, 2006. The respondent received a copy of the motion pursuant to an Order of the

Court which also ordered the respondent to respond on or before September 15, 2006. 

(Doc. 5). At no time has the United States Attorney been served with process in accord

with the requirements of Federal Rule of Civil Procedure 4(i), therefore this Court lacks

personal jurisdiction over the respondent.

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2. The procedure for service of process upon the United States is set forth in

Federal Rule of Civil Procedure 4(i), which states in pertinent part:

(1) Service upon the United States shall be effected

(A) by delivering a copy of the summons and of the complaint to the United

States attorney for the district in which the action is brought or to an

assistant United States attorney or clerical employee designated by the 

United States attorney in a writing filed with the clerk of the court or by

sending a copy of the summons and of the complaint by registered or

certified mail addressed to the civil process clerk at the office of the United

States attorney and

 (B) by also sending a copy of the summons and of the complaint by registered

or certified mail to the Attorney General of the United States at

Washington, District of Columbia. 

3. Similarly, 26 U.S.C. § 7609(b)(2)(B) requires that any person seeking to

quash a third party summons must “mail by registered or certified mail a copy of the

petition to the person summoned . . .” Thus each entity to which a third party summons

was issued was entitled to be served with the petitioners’ motion. 

4. The docket in this matter does not reflect that summons was issued by the

clerk of the court for either the United States attorney or the Attorney General of the

United States of America. Moreover, no summons has been served upon the offices of

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In response to Defendants' facially valid challenge to personal jurisdiction, 1

petitioner bears the burden of establishing the validity of service of process. McElvain v.

United States, 2002 WL 31409568 (M.D.Ala.) (unpublished opinion), quoting, Aetna

Business Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th

Cir.1981): also see, Familia de Boom v. Arosa Mercantil, S. A., 629 F.2d 1134, 1139

(5th Cir. 1980), Reed v. Weeks Marine, Inc., 166 F.Supp.2d 1052, 1054 (E.D. Pa. 2001),

citing, Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488-489

(3d Cir.1993). 

Page 3 of 4

the United States attorney, nor does the docket reflect same has been served upon the

Attorney General of the United States of America. Therefore, service of process in this

matter is deficient. 

5. The petitioner’s “‘failure to properly serve the United States deprives the

court of personal jurisdiction.’” Holmstrom v. United States, 2003 WL 21254624

(M.D.Fla.), quoting, Thompson v. Internal Revenue Service, 23 F.Supp.2d 923, 924

(N.D.Ind.1998) (citing Rabiolo v. Weinstein, 357 F.2d 167, 168 (7th Cir.1966). “‘A

jurisdictional defect of this sort is fatal to maintenance of an action.’” Holmstrom, 2003

WL 21254624 Id., citing, Thompson, 23 F.Supp.2d at 924. Therefore, due to the

insufficiency of the service of process, this Court lacks personal jurisdiction under

Federal Rule of Civil Procedure 12(b)(2).1

WHEREFORE, premises considered, the petitioner’s Motion to Quash is due to be

and should be dismissed.

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Respectfully submitted this 15 day of September, 2006. th

LEURA G. CANARY

United States Attorney

 By: /s/R. Randolph Neeley 

 R. RANDOLPH NEELEY

Assistant United States Attorney

Bar Number: 9083-E56R

Post Office Box 197

Montgomery, AL 36101-0197

Telephone No.: (334) 223-7280

Facsimile No.: (334) 223-7418

E-mail: rand.neeley@usdoj.gov

CERTIFICATE OF SERVICE

I hereby certify that on September 15, 2006, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system, and I hereby certify that I have

mailed, by United States Postal Service, a copy of same to the following non-CM/ECF

participant(s):

Monty W. Ervin

P.O. Box 7044

Dothan, AL 36302

Patricia Ervin

P.O. Box 7044

Dothan, AL 36302

s/R. Randolph Neeley 

Assistant United States Attorney

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