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Nero v. Seifert

United States District Court, D. Arizona

June 21, 2017

Chris M. Nero and Maria Bullock Nero, Plaintiffs,
v.
Ryan C. Seifert, Defendant.

          ORDER

          Cindy K. Jorgenson United States District Judge

         Pending before the Court are the Motion to Dismiss (Doc. 10) filed by the United States of America on behalf of its employee Ryan C. Seifert (“Seifert”). Also pending before the Court are the Petition for Application for 180 Day Stay (Doc. 11) and the Petition to Strike Motion to Dismiss and for Summary Judgment or Trial by Jury (Doc. 18) filed by Chris M. Nero (“Nero”) and Maria Bullock Nero (collectively, “the Neros”).

         I. Factual and Procedural History

         On February 22, 2010, Nero entered into a plea agreement in CR 08-744-TUC-CKJ (JCG). Nero pleaded guilty to three counts of Attempted Evasion of Assessment and Payment of Federal Individual Income Taxes, in violation of 26 U.S.C. § 7201. In exchange for Nero's guilty plea, the government agreed not to bring further criminal charges against Nero relating to mortgage fraud charges in the case, and, if the Court accepted the plea agreement, the government agreed to move to dismiss the remaining charges of wire fraud, conspiracy to commit wire fraud, money laundering, conspiracy to commit money laundering, and aid and abet.

         On November 9, 2010, the Court sentenced Nero in CR 08-744-CKJ (JCG) to a 58-month term of imprisonment followed by three years on supervised release. The Judgment in the criminal case included the following special condition of supervised release:

7. As set forth in the plea agreement, within 180 days of the commencement of supervised release, you shall enter into a closing agreement with the IRS and file original and/or amended individual and corporate state and federal tax returns for tax years 2001-2008.

         Judgment (CR 08-744-CKJ (JCG), Doc. 423), p. 3.

         The Neros allege they received a letter from Seifert seeking financial records to schedule a meeting in his office regarding a collection. The Neros allege Seifert obtained a credit report and placed an unlawful levy on each of their checking accounts without due process of law. The Neros also allege Seifert made false statements and that his charges of claims are not substantially supported.

         On October 4, 2016, the Neros filed an Order to Show Cause for Preliminary Injunction & Emergency Temporary Restraining Order and Civil/Equity Complaint (“Complaint”) in the Pima County Superior Court. On October 21, 2016, Seifert and the United States of America removed the action to this Court. (Doc.1).

         On January 13, 2017, the government filed a Motion to Dismiss. The Neros have filed a Petition to Strike Motion to Dismiss and for Summary Judgment or Trial by Jury (Doc. 18). The Court will accept the Petition to Strike Motion to Dismiss as response or a request to deny the Motion to Dismiss. The government has filed a reply (Doc. 19).

         On February 6, 2017, the Neros filed a Petition for Application for 180 Day Stay (Doc. 11). The government has filed an opposition (Doc. 13) and the Neros have filed a reply (Doc. 14).

         II. Motion to Dismiss (Doc. 10) and Petition to Strike Motion to Dismiss (Doc. 18)

         A. Service of Process

         The government asserts that service pursuant to Fed.R.Civ.P. 4(i)(3) has not been completed. Specifically, the government asserts the Neros did not serve the Attorney General of the United States and the United States Attorney for the District of Arizona in addition to serving Seifert. The Neros do not respond to this argument.

         Absent good cause for failure to serve a defendant within 90 days, the court may either dismiss the action or order service within a specified time. Fed.R.Civ.P. 4(m). A court should consider factors such as “a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service” in deciding whether determining whether to dismiss the action or order service. Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (citing Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir.1998)). In an action against a federal employee in his official capacity, a plaintiff must serve both the United States and the employee. When a case is removed from state court, the time period begins on the date ...


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