Everett v. United States Department of Justice

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN EVERETT, : : Plaintiff, : Civil Action No.: 14-1694 (RC) : v. : : UNITED STATES DEPARTMENT : OF JUSTICE, et al. : : Defendants. :

MEMORANDUM OPINION

DISMISSING COMPLAINT AS TO DEFENDANTS CAROL W. ANDERSON, KIM WESTBROOK STRACH, UNITED STATES DEPARTMENT OF JUSTICE, ERIC H. HOLDER, JR., NORTH CAROLINA STATE BOARD OF ELECTIONS, AND THE STATE OF NORTH CAROLINA AND DIRECTING THE CLERK OF THE COURT TO CLOSE THIS CASE

Plaintiff John Everett filed this civil action on October 9, 2014. See ECF No. 1. On

October 10, 2014, the Clerk of the Court issued summonses. On June 30, 2015, the Court

ordered Plaintiff to show cause on or before July 30, 2015 why this case should not be dismissed

without prejudice as to Defendants Carol W. Anderson, Kim Westbrook Strach, the United

States Department of Justice (“DOJ”), Eric H. Holder, Jr., the North Carolina State Board of

Elections, and the State of North Carolina, the only remaining Defendants in this action. See

Order to Show Cause, ECF No. 48. Plaintiff has not filed any response to the Court’s Order or

requested an extension of time to respond. For the reasons discussed below, the Court will

dismiss the Complaint as to these Defendants without prejudice and direct the Clerk to close this

case.

The Court will dismiss the Complaint without prejudice as to Defendants Anderson,

Strach, DOJ, and Holder pursuant to Rule 4 of the Federal Rules of Civil Procedure for failure to effect service and Local Civil Rule 83.23 for failure to prosecute. As the Court explained in its

Order to Show Cause, plaintiffs not proceeding in forma pauperis are responsible for effecting

service of process. See Fed. R. Civ. P. 4(c). It does not appear from the record that Plaintiff has

properly effected service on these Defendants. Additionally, with respect to Defendants DOJ

and Holder, it does not appear that that Plaintiff has served the U.S. Attorney for the District of

Columbia in accordance with Rule 4(m) of the Federal Rules of Civil Procedure. See Fed. R.

Civ. P. 4(m) (“To serve the United States, a party must . . . deliver a copy of the summons and of

the complaint to the United States attorney for the district where the action is brought . . . .”). “If

a defendant is not served within 120 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.”). The 120-day period has long

since passed, and dismissal is appropriate.

The Court will dismiss the Complaint without prejudice as to Defendants the North

Carolina State Board of Elections and the State of North Carolina (the “North Carolina

Defendants”) for failure to establish personal jurisdiction. Plaintiff has made not many any

showing that this Court has personal jurisdiction over the North Carolina Defendants. See Am.

Action Network, Inc. v. Cater Am., LLC, 983 F. Supp. 2d 112, 118 (D.D.C. 2013) (explaining

that plaintiffs bear the burden of showing that the court has personal jurisdiction over

defendants); see also Fed. R. Civ. P. 4(k). Accordingly, dismissal is appropriate as to the North

Carolina Defendants.

Dismissal is also appropriate as to all of the remaining Defendants due to Plaintiff’s

failure to show cause in accordance with the Court’s Order. In its June 30, 2015 Order to Show

Cause, the Court informed Plaintiff of the foregoing grounds for dismissing this case. See Order to Show Cause. The Court ordered Plaintiff to show cause why the case should not be dismissed

on these grounds on or before July 30, 2015. That deadline has long since passed, and Plaintiff

has neither filed any response to the Court’s Order nor requested an extension of time to file a

response. Plaintiff’s failure to respond to the Order to Show Cause further demonstrates his

failure to prosecute this case and is an independent ground for dismissal. See LCvR 83.23.

For the foregoing reasons, the Court will dismiss the Complaint without prejudice as to

Defendants Anderson, Strach, DOJ, Holder, and the North Carolina Defendants. The Court

previously dismissed the Complaint as to all of the other named Defendants. See Order, ECF

No. 40 (dismissing the Complaint as to Defendants the Durham County Board of Elections, the

County of Durham, and Michael D. Page); Order, ECF No. 42 (dismissing the Complaint as to

Defendant Hartford Insurance Company); Order, ECF No. 44 (dismissing the Complaint as to

Defendant Fidelity & Deposit Company of Maryland); Order, ECF No. 46 (dismissing the

Complaint as to Defendants the City of Durham and Mayor William Bell). Therefore, the Court

will also direct the Clerk of the Court to close this case. An order consistent with this

memorandum opinion is separately and contemporaneously issued.

Dated: August 21, 2015 RUDOLPH CONTRERAS United States District Judge