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 ICI’s petition to quash a subpoena to U.S. Bank was assigned case number C05-1959Z; the

petition to quash the subpoena to Bank of America was assigned case number C05-1960R. 

ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

INVESTOR COMMUNICATIONS

INTERNATIONAL, INC.

Petitioner,

v.

UNITED STATES OF AMERICA, et al.,

Respondents.

CASE NO. C05-1961C

ORDER

This matter comes before the Court on a motion to dismiss by Respondent United States (Dkt.

No. 5) and Petitioner Investor Communications International, Inc.’s (“ICI”) motion for an extension of

time to serve its petition (Dkt. No. 10). Having considered the memoranda, declarations, and exhibits

submitted by the parties and the allegations in the complaint, and finding oral argument unnecessary, the

Court will DENY the motion to dismiss and GRANT the motion to enlarge time. 

I. FACTUAL AND PROCEDURAL BACKGROUND

This case is one of three substantively identical petitions to quash subpoenas served by the IRS on

third parties holding Petitioner tax records. Each of the three cases arises from the January 19, 2005,

issuance of subpoenas by IRS agent Paul Shipley; in this case the subpoena was mailed to Bank of

America Bankcard Services (“BOA”).1 (Dkt. No. 1-5.) Shipley mailed a copy of the subpoena to ICI on

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 On February 14, ICI filed an amended petition that differed from the original by adding language

regarding the IRS’s investigation into one of ICI’s former owners. (Dkt. No. 3.) 

ORDER – 2

the same day, notifying ICI that its petition to quash the subpoena must be filed within twenty days “of

the date of this notice.” (Id. at 10.) The notice also advised ICI that “[a]t the same time you file your

petition with the court, you must mail a copy of your petition by certified or registered mail to the person

summoned and to . . . the [IRS] officer whose name and address are shown on the face of this summons.” 

(Id.) Finally, the notice advised ICI that its petition “must be served upon the appropriate parties,

including the United States, as required by Federal Rule of Civil Procedure 4.” (Id.)

ICI responded by filing its petition to quash the subpoena to BOA on February 8, 2005, exactly

twenty calendar days after the date that Shipley mailed the subpoena.2

 (Dkt. No. 1.) The proof of

service accompanying ICI’s petition stated that counsel mailed copies of the petition to both Shipley (at

his address on the subpoena) and BOA on that same day. (Dkt. No. 1-3.) However, the proof of service

did not state whether the service had been accomplished by certified or registered mail, and did not

indicate service on the United States. (Id.) Counsel for ICI later conceded that the United States had not

been served due to an administrative error. (See Opp’n 3.) 

Nothing transpired in any of the three related cases for the next eight months, until the United

States filed identical motions to dismiss on October 28, 2005, in all three cases. This case was then

reassigned, and in December ICI opposed the motion to dismiss and filed a motion to extend its time to

serve the United States with its petition. (Dkt. No. 10.) The Court subsequently continued the noting

date on the motion to dismiss to allow ICI to complete the briefing on its motion for an extension of time. 

(Dkt. No. 12.) 

II. LEGAL ANALYSIS

A. Jurisdiction to Hear the Petition Under 26 U.S.C. § 7609

The United States argues that ICI’s failure to serve the United States with the petition within 120

days, as required by Rule 4(m), divests the Court of jurisdiction under 26 U.S.C. § 7609(b)(2)(B). (See

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 The United States filed identical motions to dismiss in each of the three cases. In December,

Judge Zilly granted the United States’ motion to dismiss, finding that the failure to serve the United

States within 120 days exceeded the scope of the jurisdictional waiver in § 7609. (Case No. C05-1959Z,

Dkt. No. 7.) In January, following the filing of a declaration by counsel for ICI that its petition had been

served on Shipley and BOA by certified mail, Judge Robart denied the motion to dismiss and granted

ICI’s motion for an extension of time to serve the United States. (Case No. C05-1960R, Dkt. No. 17.) 

ORDER – 3

Dkt. No. 5.) Because § 7609 constitutes a limited waiver of sovereign immunity by the United States as

to petitions to quash IRS subpoenas, the United States argues that failure to strictly comply with the

instructions on the subpoena divests the courts of jurisdiction and requires dismissal.3

 (Id. at 5.) 

The Court disagrees and finds that it does retain jurisdiction to hear ICI’s petition. The text of

§ 7609 makes clear that ICI’s petition was filed and served in a manner consistent with the government’s

limited waiver of subject matter jurisdiction. Under § 7609(b)(2), ICI was on notice of the IRS subpoena

as of the postmarked date on the subpoena; it was thus required to file and serve its petition within

twenty calendar days “by registered or certified mail . . . to the person summoned and to such office as

the Secretary may direct in the [subpoena].” Citing this provision, the subpoena itself required ICI to

mail its petition by certified or registered mail to Agent Shipley and BOA. (Dkt. No. 1-5 at 10.) There is

no dispute that ICI complied in full with these provisions as to its original petition, and the Court does

not read into the specific text of § 7609(b)(2)(B) nor the subpoena itself an additional jurisdictional

requirement that the United States be served consistent with Rule 4. Accordingly, the Court DENIES

the United States’ motion to dismiss as to ICI’s original petition filed on February 8, 2006. 

B. Enlargement of Time to Serve Petition

The separate issue of whether ICI should be given leave from the requirements of Rule 4 is the

subject of both the United States’ motion to dismiss and ICI’s motion for an enlargement of time to serve

its petition. ICI concedes that it has not yet served the United States with the petition and thus violated

the requirement in Rule 4(m) that it effect service on the United States within 120 days of the filing of its

petition. (Pet. Mot. 2–3.) That rule provides that “if the plaintiff shows good cause for the failure [to

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serve], the court shall extend the time for service for an appropriate period.” FED. R. CIV. P. 4(m). 

There is no basis to suggest that any party will be prejudiced from permitting additional time for ICI to

serve its petition, especially given the fact that Agent Shipley and BOA have long been on notice of the

petition. In light of the long delay by the United States in identifying the service defect, the Court finds

that ICI’s good faith efforts to comply with its service requirements represent good cause to extend its

time to serve the petition. Accordingly, the Court GRANTS ICI’s motion for an enlargement of time.

III. CONCLUSION AND ORDER

For the foregoing reasons, the Court DENIES the United States’ motion to dismiss (Dkt. No. 5). 

Further, the Court GRANTS Petitioner ICI’s motion for an enlargement of time to serve its petition on

the United States (Dkt. No. 10). ICI is DIRECTED to serve the United States with its originally filed

petition with seven days of the date of this Order. 

SO ORDERED this 3rd day of March, 2006.

A

UNITED STATES DISTRICT JUDGE

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