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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DAVID RUSSELL HART,

Plaintiff,

v.

COMMISSIONER OF INTERNAL REVENUE

SERVICE,

Defendant.

CIV S-04-2497 DFL PAN PS

ORDER 

—NFN—

On August 20, 2004, petitioner paid the filing fee and

filed in this court’s Fresno division a “‘Plea in Abatement’ by

Special Appearance, Notice and Demand to Dismiss for Lack of

Jurisdiction.” 

On November 23, a scheduling conference was held before

the Honorable Dennis L. Beck. On November 24, Judge Beck issued

an order transferring this action to the Sacramento division as

the “more appropriate venue” based on plaintiff’s Truckee

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1 These periods include an additional three days for service of the

respective orders pursuant to Fed. R. Civ. P. 6(e). 

2

residence (plaintiff stated he had filed in the Fresno division

because he sends his tax returns to a Fresno address). In the

same order, Judge Beck directed plaintiff to file an amended

complaint within 60 days and to complete service of process upon

defendant 45 days thereafter.

The case was transferred to this court on November 29,

2004, and on December 3, the Clerk of Court issued this court’s

“Order Requiring Timely Service and Joint Status Report.”

On January 26, 2005, plaintiff timely filed an amended

complaint entitled “‘Complaint’ Amended, Plea for Discovery

Motion to Suppress Evidence and Demand to Dismiss for Lack of

Jurisdiction by Special Appearance.” 

However, plaintiff has not demonstrated completion of

service of process upon defendant within either the 45-day period

accorded by Judge Beck’s order (March 15, 2005), or the 120

period accorded by this court’s December 3 order (June 1, 2005).1

Service of process upon the United States and its

agencies is governed by Fed. R. Civ. P. (i), which provides: 

“(1) Service of process 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 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 

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(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, and . . .

(2)(A) Service on an agency or corporation of the United States,

or an officer or employee of the United States sued only in an

official capacity, is effected by serving the United States in

the manner prescribed by Rule 4(I)(1) and by also sending a copy

of the summons and complaint by registered or certified mail to

the officer, employee, agency, or corporation.”

In order to comply with Rule 4(i), plaintiff is directed

to send by certified or registered mail a copy of the summons and

complaint to each of the following:

Mark W. Everson, Commissioner

Internal Revenue Service

U.S. Department of the Treasury

1500 Pennsylvania Avenue, NW

Washington, D.C. 20220

McGregor W. Scott

United States Attorney

Eastern District of California

c/o Civil Process Clerk

501 I Street, Suite 10-100

Sacramento, CA 95814-2322

Alberto Gonzalez

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, D.C. 20530-0001

Plaintiff is directed to file proof of such service by

July 20, 2005. Failure to comply with this order will result in

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a recommendation this action be dismissed pursuant to Fed. R.

Civ. P. 4(m) and Fed. R. Civ. P. 41(b). 

So ordered.

Dated: July 6, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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