Tift v. McFadden

Opinion

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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 11 GREGORY S. TIFT, CASE NO. 2:23-cv-00999-TL 12 Plaintiff, ORDER REQUIRING SERVICE OF v. PROCESS AND FURTHER 13 PETER P. MCFADDEN et al., BRIEFING 14 Defendants. 15

16 This matter comes before the Court on Plaintiff Gregory Tift’s deficient response to the 17 Court’s Order to Show Cause. Dkt. Nos. 8–10. Plaintiff is a Bar Order litigant in this District. 18 See Gregory S. Tift v. Michael D. Ball, et al., C07-276, 2008 WL 11389469 at *6 (W.D. Wash. 19 May 16, 2008). 20 I. BRIEF BACKGROUND 21 The Order to Show Cause required Plaintiff to: (1) file proof of service or waiver from 22 each Defendant, or show cause for failure to complete service; (2) show cause why nominal 23 defendant Bank of America should not be dismissed from this lawsuit given that no summons 24 1 has been requested for it; and (3) file a “‘Rule 11 Certification’ providing the factual and legal 2 basis for [each] claim and detailing how that claim falls outside of the Bar Order’s scope.” Dkt. 3 No. 8 at 2–3. 4 II. ANALYSIS

5 Plaintiff filed certificates of service on the docket on November 4, 2023, and a timely 6 response to the Order to Show Cause on November 12, 2023. Dkt. Nos. 9, 10. However, Plaintiff 7 has failed to satisfy any of the Court’s directives. 8 The certificates of service show proof of correct service on only one of the named 9 defendants. According to the summons form submitted, Plaintiff effectuated personal service on 10 Defendant Peter McFadden on October 23, 2023. Dkt. No. 9 at 2. Plaintiff also filed priority mail 11 receipts with recipient signatures dated July 14 and July 17, 2023, for Defendant McFadden, 12 “ATTN M EDWARDS” at the Internal Revenue Service (“IRS”) office in Seattle, and someone at 13 “TAX DIVISION US DEPARTMENT OF JUSTICE TAX BOX” in Washington, D.C. (exact address 14 undisclosed) respectively. Dkt. Nos. 10 at 4, 10-1 at 6–8. These receipts are insufficient to serve

15 either the United States or the IRS, a United States agency. To sue either of these entities, the 16 Federal Rules of Civil Procedure additionally require, at minimum, service on the the United 17 States attorney’s office in this District as well as the Attorney General of the United States. Fed. 18 R. Civ. P. 4(i)(A), 4(i)(1)(B), and 4(i)(2).1 Plaintiff has not served the local United States 19 attorney’s office, nor has he served the Attorney General at the correct address. 20 21

22 1 The Internal Revenue Service has previously raised improper service as a defense in motions to dismiss in at least two prior lawsuits filed by Plaintiff. See Tift v. Internal Revenue Serv. & Richard Ped (“Tift I”), C11-1673, Dkt. No. 11 at 4 (W.D. Wash. Oct. 6, 2011); Tift v. Internal Revenue Serv. & Mel Hammer (“Tift II”), C08-332, Dkt. No. 7 at 23 6–7 (W.D. Wash. March 31, 2008). Both lawsuits were dismissed. Tift I, C11-1673, Dkt. No. 20 (W.D. Wash. Feb. 6, 2012); Tift II, C08-332, Dkt. No. 14 (W.D. Wash. June 10, 2008). Therefore, Plaintiff should be aware of the 24 requirements for serving a federal government agency. 1 Plaintiff also fails to establish that service is unnecessary on nominal defendant Bank of 2 America, providing no legal authorities regarding service on nominal defendants to guide the 3 Court’s determination. The Fourth Circuit decision that Plaintiff cites for the proposition that 4 “[n]o cause of action is asserted against a nominal defendant” does not even mention service of

5 process. See Commodity Futures Trading Comm’n v. Kimberlynn Creek Ranch, Inc., 276 F.3d 6 187, 192 (4th Cir. 2002); see also Dkt. No. 10 at 2. 7 Critically, Plaintiff failed to provide the certification required under the Bar Litigant 8 Order as requested by this Court. As explained in the Order to Show Cause, Plaintiff is a serial 9 litigant in this District—and even against some of the parties at issue here—and should be well 10 aware of Court rules as well as the Bar Order to which he is subject. Dkt. No. 8 at 2. The Bar 11 Order requires Plaintiff to provide “the factual and legal basis for [each future legal claim filed in 12 this District], and the reasons why it falls outside the scope of this Order,” which restricts him 13 from filing any claim against specific parties or relating to a particular set of claims, defenses, 14 evidence, or representations. See Tift v. Ball, C07-276, at *6 (W.D. Wash. May 16, 2008).

15 Plaintiff has merely filed a statement reproducing Rule 11(b) (Dkt. No. 10 at 2–3), which is 16 clearly not what the Court requested. 17 Plaintiff has alleged that Defendant McFadden is “a rogue revenue agent” (presumably 18 with the IRS), so it appears that he has correctly served a United States employee. Pursuant to 19 Rule 4, the Court is thus required to allow Plaintiff a reasonable time to cure the failure to 20 properly serve the United States. See Fed. R. Civ. P. 4(i)(4). 21 III. CONCLUSION 22 The Court GRANTS Plaintiff one more opportunity to: (1) perfect service on the United 23 States and the Internal Revenue Service; (2) provide legal authorities for inclusion of Bank of

24 America as an un-served nominal defendant in this case; and (3) explain why this case falls 1 outside of the scope of the Bar Order. If Plaintiff fails to perfect service or make the showings 2 required by this Order within thirty (30) days (i.e., by December 22, 2023), this case shall be 3 dismissed with prejudice (without leave to re-file). 4 Dated this 22nd day of November 2023.

5 A 6 Tana Lin United States District Judge 7

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